OFFICE LEASE
MARLBOROUGH CAMPUS
by and between
MARLBOROUGH CAMPUS LIMITED PARTNERSHIP,
as landlord
and
EXACT SCIENCES CORPORATION,
as tenant
MARLBOROUGH CAMPUS
OFFICE LEASE
This Office Lease (the "LEASE"), dated as of the date set forth in SECTION 1 of
the Summary of Basic Lease Information (the "SUMMARY"), below, is made by and
between MARLBOROUGH CAMPUS LIMITED PARTNERSHIP, a Massachusetts limited
partnership ("LANDLORD"), and EXACT Sciences Corporation, a corporation
("TENANT").
SUMMARY OF BASIC LEASE INFORMATION
TERMS OF LEASE DESCRIPTION
-------------- -----------
1. Date: January 23, 2003
2. Premises
(Article 1)
2.1 Building: That certain six-story building located at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ in the "Project," commonly referred to in the Project as
"BUILDING 1."
2.2 Premises: Approximately 55,740 rentable square feet of space, calculated per BOMA
Standard Z65.1-1996 ("BOMA Standard"), located on the fifth and sixth floors
of the Building, as further set forth in EXHIBIT A to this Lease
("PREMISES").
2.3 Project: The Building is part of that certain building complex (the "PROJECT")
consisting of four (4) buildings comprising 530,895 rentable square feet of
space, and other improvements, as depicted on EXHIBIT B and as further set
forth in SECTION 1.2 of this Lease.
2.4 Interim Premises The portion of the Premises identified in accordance with SECTION 3.2, below.
3. Lease Term
(Article 2)
3.1 Length of Initial Term: Approximately seven (7) years and six (6) months.
3.2 Lease Commencement Date: January 23, 2003.
3.3 Rent Commencement Date: July 15, 2003
3.4 Lease Expiration Date: July 31, 2010 at 11:59 p.m. EST, unless sooner terminated pursuant to the
provisions hereof.
3.5 Option(s) to Extend One option to extend for three (3) years.
4. Base Rent (Article 3):
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4.1 Base Rent During Initial Term:
Monthly Installment of Annual Rental Rate per
Period Annual Base Rent Base Rent Rentable Square Foot
------ ---------------- ---------------------- ----------------------
7/15/2003-7/31/2004 $ 1,254,150.00 $ 104,512.50* $ 22.50
8/1/2004-7/31/2005 $ 1,282,020.00 $ 106,835.00* $ 23.00
8/1/2005-7/31/2006 $ 1,309,890.00 $ 109,157.70* $ 23.50
8/1/2006-7/31/2007 $ 1,337,760.00 $ 111,480.00* $ 24.00
8/1/2007-7/31/2008 $ 1,385,630.00 $ 113,802.50* $ 24.50
8/1/2008-7/31/2009 $ 1,393,500.00 $ 116,125.00* $ 25.00
--------------
8/1/2009-7/31/2010 $ 1,421,370.00 $ 118,447.50* $ 25.50
----------
*Monthly installments of rent shall be reduced, to the extent applicable, by the
credit due in accordance with Section 21.2 of this Lease.
EXAMPLE: Based on an initial letter of credit of $1,000,000, and a cost equal to
or in excess of 1% of the letter of credit amount, and if the reductions are
effective in accordance with Section 21.3 below, the net Base Rent payable,
after such credit, shall be as follows (provided, however, when the Base Rent
for the first month of the Lease Term (July, 2003) is paid upon execution of
this Lease, Tenant may deduct therefrom, the pro rata share of the credit due in
accordance with Section 21.2 (not to exceed $833.33 per month) for the period
from the date of issuance of the letter of credit to July 31, 2003):
Estimated Estimated
Net after L/C Credit: Net after L/C Credit:
Annual Monthly Installment
Period Base Rent of Base Rent
------ ------------------------ --------------------------------
7/15/2003-7/31/2004 $ 1,244,150.00 TBD
8/1/2003-7/31/2004 $ 1,244,150.00 $ 103,679.17
8/1/2004-7/31/2005 $ 1,272,020.00 $ 106,001.67
8/1/2005-7/31/2006 $ 1,300,890.00 $ 108,407.50
8/1/2006-7/31/2007 $ 1,329,760.00 $ 110,813.33
8/1/2007-7/31/2008 $ 1,358,630.00 $ 113,219.17
8/1/2008-7/31/2009 $ 1,387,500.00 $ 115,625.00
8/1/2009-7/31/2010 $ 1,416,370.00 $ 118,030.83
4.2 Base Rent During Option Term: Fair market value, determined in accordance with SECTION
3.1.1 of this Lease.
4.3 Interim Rent Interim Rent, as defined in SECTION 3.2, below
5. Base Year (Article 4:) Calendar year 2003; it being understood that in
calculating Tax Expenses for the Base Year, Landlord shall
use one-half of the taxes for the fiscal
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year from July 1, 2002 to June 30, 2003 and one-half of the
taxes for the fiscal year from July 1,2003 to June 30, 2004.
6. Tenant's Share (Article 4:) 10.5.%
7. Permitted Use (Article 5:) Tenant shall use the Premises for general office,
laboratory and research purposes use, including but not
limited to research and development, sales, training,
biology, clinical and research lab.
8. Security Deposit (Article 21:) $1,000,000 letter of credit, adjusted in accordance with
SECTION 21.3 of this Lease.
9. Parking (Article 28:) Tenant's Share of all parking available at the Project
As of the Lease Commencement Date, the Project includes
a total of 1,417 parking spaces.
10. Address of Tenant (Section 29.16:) See SECTION 29.16 of this Lease.
11. Address of Landlord (Section 29.16:) See SECTION 29.16 of this Lease.
12. Broker(s) (Section 29.22:) ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ of MA, Inc.
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ARTICLE 1
PREMISES, BUILDING, PROJECT, AND COMMON AREAS
1.1 THE PREMISES. Landlord hereby leases to Tenant and Tenant hereby
leases from Landlord the premises set forth in SECTION 2.2 of the Summary (the
"PREMISES") and shown on EXHIBIT A, attached hereto. The Premises consist of
substantially all of the fifth and sixth floors of the building designated in
SECTION 2.1 of the Summary (the "BUILDING") and shall be deemed to be the number
of rentable square feet as set forth in SECTION 2.2 of the Summary. Tenant shall
not have the right to remeasure the Premises. The parties hereto agree that the
lease of the Premises is upon and subject to the terms, covenants and conditions
(the "TCCS") herein set forth, and Landlord and Tenant covenant as a material
part of the consideration for this Lease to keep and perform each and all of
such terms, covenants and conditions by it to be kept and performed and that
this Lease is made upon the condition of such performance. Tenant also
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty regarding the condition of the Premises, the Building
or the Project or with respect to the suitability of any of the foregoing for
the conduct of Tenant's business, except as specifically set forth in this
Lease. Landlord shall not be obligated to provide or pay for any improvement
work or services related to the improvement of the Premises except as follows:
Prior to the Commencement Date, Landlord shall provide a tenant entry by
installing doors on the fifth and sixth floors to demise the Premises (the
"Landlord's Work"). Tenant shall at its sole cost and expense make such doors
secure by installing an internal card reader system in accordance with SECTION
1.5, below.
1.2 THE BUILDING AND THE PROJECT. The Building is part of a complex of
buildings located on the Property consisting of four (4) buildings and other
improvements. The term "PROJECT," as used in this Lease, shall mean (i) the
Building and the Common Areas (as such term is defined in SECTION 1.3 below),
(ii) the land (which is improved with landscaping, parking areas, access roads
and other improvements) upon which the Building and the Common Areas are located
as shown on the Project Site Plan, and (iii) the three other office buildings
(including without limitation, "BUILDING 2", "BUILDING 3" and "BUILDING 4")
located adjacent to the Building and the land upon which such adjacent office
buildings are located, all substantially as shown on the Project Site Plan
attached hereto as EXHIBIT B.
1.3 COMMON AREAS. Tenant shall have the non-exclusive right to use in
common with Landlord and other tenants in the Project, and subject to the rules
and regulations referred to in ARTICLE 5 of this Lease and attached hereto as
EXHIBIT D, as applied uniformly to all tenants, those portions of the Building
and the Project which are provided, from time to time, for non-exclusive use in
common by Landlord, Tenant and any other tenants of the Project (such areas,
including without limitation parking areas, driveways, access roads and
sidewalks on the Project, whether or not shown on the Project Site Plan, and
common facilities within the Building such as lobbies, corridors, stairwells,
elevators, loading docks, and restrooms, the Conference Facilities (as defined
in Section 1.31, below), Cafeteria (as defined in Section 1.3.2, below) and
Fitness Center (as defined in Section 1.3.3, below), together with such other
portions of the Project designated to Tenant in writing by Landlord to be shared
by Landlord and certain tenants, are collectively referred to herein as the
"COMMON AREAS"). Landlord shall maintain and operate the Common Areas in a
manner consistent with Comparable Buildings (as defined in SECTION 6.1).
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Tenant shall have the right, in common with other tenants of the Building,
to use the Cafeteria, the Conference Facilities, the Fitness Center, so long as
the same are available to other tenants of the Project, subject to the other
terms and conditions of this Lease and such reasonable rules and regulations as
Landlord may adopt with respect thereto. Landlord reserves the right to close
temporarily or permanently, make alterations or additions to, or change the
location of elements of the Project and the Common Areas, including, without
limitation, the right to (a) make changes in the location, size, shape and
number of driveways, entrances, parking spaces, parking areas, loading and
unloading areas, ingress, egress, direction of traffic, landscaped areas and
walkways (except that under no circumstances shall the total number of parking
spaces in the Project be reduced below 1417); (b) to close temporarily any of
the Common Areas for maintenance purposes so long as reasonable access to the
Premises remains available; (c) to add additional improvements to the Common
Areas; (d) to use the Common Areas while engaged in making additional
improvements, repairs or alterations to the Project, or any portion thereof; (e)
to do and perform such other acts and make such other changes in, to or with
respect to the Project, Building and Common Areas as Landlord may deem to be
appropriate; and (f) to remove temporarily from use as Common Areas any portion
of the Common Areas; provided, however, that Landlord's exercise of the
foregoing rights shall not materially, adversely interfere with Tenant's access
to the Building and the Premises and/or with Tenant's use and occupancy of the
Premises or the Common Areas, other than and excluding the Common Areas of
Building 4, which may be withdrawn from Common Areas, subject to the provisions
set forth below, and provided further that if Landlord permanently removes any
portion of the Conference Facilities, Cafeteria and/or Fitness Center from use
as Common Areas during the Lease Term (which right to remove shall be subject to
the provisions set forth below), the total square footage contained in the
Project and the Premises shall be re-calculated in accordance with the BOMA
Standard and Tenant's Share shall be adjusted accordingly. If the Conference
Facilities, Cafeteria and/or Fitness Center are closed for a temporary period in
excess of six months, other than for reasons related to a casualty, the total
square footage in the Premises and Tenant's Share shall be adjusted as set forth
in the preceding sentence until such time as those areas are restored to use as
Common Areas.
1.3.1 CONFERENCE FACILITIES. Subject to availability, and prior
reservation in accordance with any reasonable procedures implemented by Landlord
and provided in writing to Tenant, Tenant shall have the right to use the
meeting and training rooms and the auditorium located in Building 4
(collectively, the "CONFERENCE FACILITIES") in common with Landlord and other
tenants of the Project, to the extent otherwise permitted by Landlord. The use
of such facilities shall be subject to such reasonable rules and requirements as
Landlord may establish and provide in writing to Tenant, and to all other
provisions of this SECTION 1.3. In no event shall Tenant's right to use such
facilities have precedence over Landlord's use thereof (unless the facilities
have been previously reserved by Tenant in accordance with Landlord's reasonably
established rules and requirements). Notwithstanding any other provision herein
to the contrary, Landlord reserves the right, upon written notice to Tenant, (a)
to retain a third party operator to operate the Conference Facilities, or (b) to
lease the Conference Facilities to a third party, provided, however, in either
such case, Landlord shall provide for the right of Tenant to rent, or otherwise
use, the Conference Facilities listed below on substantially the same basis as
set forth in this Lease. Tenant shall pay Landlord a fee for usage of the
meeting rooms and auditorium in accordance with the then current schedule set by
Landlord, in Landlord's sole and
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absolute discretion. The current schedule, which Landlord may change upon
written notice to Tenant, is as follows:
Meeting/Conference Room Daily Rate Half-Day Rate
----------------------- ---------- -------------
▇▇▇▇▇▇▇ River (Auditorium) $ 375 $ 250
Nashua River $ 250 $ ▇▇▇
▇▇▇▇▇▇▇ (▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇) $ 250 $ 125
1.3.2 CAFETERIA. Tenant and its employees, contractors,
visitors and consultants shall have the right to use the cafeteria (the
"CAFETERIA") located in the Project so long as it is operational provided such
parties shall be responsible for payment of all charges for meals and other
items purchased at the cafeteria. The use of such facilities by Tenant and/or
its employees, contractors, visitors and consultants shall be subject to
compliance with the other provisions of this SECTION 1.3. A third party provider
currently provides food and beverage service in the Cafeteria. Landlord shall
use commercially reasonable efforts to continue to operate the Cafeteria in
substantially the same manner as it is operated now, provided, however, that
Landlord shall not be required to subsidize the Cafeteria in any manner, and
Landlord, in its reasonable discretion, may change the size, configuration or
location of the Cafeteria area. In the event that Landlord is unable to locate
an operator that will operate the Cafeteria on terms acceptable to Landlord, in
its reasonable business discretion, Landlord shall have the right and option, in
its sole discretion, to take any steps necessary to reduce or eliminate such
costs, including, without limitation, modification or reduction of the food
service, provided, however, if Landlord discontinues cafeteria service during
the Term, Landlord shall provide an alternative fresh food (including breakfast
items, sandwiches, and salads, but not hot food) and vending service and a
seating area or facility substantially similar to that which currently exists at
the Project.
1.3.3 FITNESS CENTER. Tenant and its employees, contractors
and consultants shall have access to and the right to use the fitness center
(the "FITNESS CENTER") located in the Project so long as it is operational
provided such parties shall be responsible for payment of all charges
customarily charged by Landlord for the use of the fitness center (currently
$25.00 per month). The use of such facilities by Tenant and/or its employees,
contractors, visitors and consultants shall be subject to compliance with the
other provisions of this SECTION 1.3. Landlord shall have the right to require
that Tenant's employees sign customary waivers of claims and comply with all
safety and other procedures applicable to use of the fitness center.
Notwithstanding any other provision herein to the contrary, Landlord reserves
the right, upon written notice to Tenant, (a) to retain a third party operator
to operate the Fitness Center, (b) to lease the Fitness Center to a third party
who agrees to operate a fitness facility which shall be available to tenants of
the Project and their employees upon payment of standard charges, and/or (c) to
provide a Fitness Center which is unattended, and does not provide amenities
such as towels, provided, however, in any such case, Landlord shall provide for
the right of Tenant to
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rent, or otherwise use, the Fitness Center on substantially the same basis as
set forth in this Lease. Landlord shall use commercially reasonable efforts to
continue to make a fitness facility of substantially similar quality as in
existence as of the date of this Lease available at the Project during the Term,
provided, however, such facility need not be attended nor provide amenities such
as towels. Landlord shall have the right to terminate Tenant's use of the
Fitness Center upon ten (10) days prior written notice to Tenant if the Fitness
Center is closed.
1.4 FURNITURE. For no additional charge, Landlord hereby leases to
Tenant and Tenant hereby leases from Landlord those items of furniture and
artwork situated in the Premises (the "FURNITURE") and described on the
inventory list attached hereto as EXHIBIT C (the "INVENTORY LIST"). Landlord
hereby represents to Tenant that Landlord owns the Furniture and has the right
to lease the Furniture to Tenant as described herein. Landlord and Tenant
acknowledge that prior to the Lease Commencement Date the parties will conduct a
"walk-through" inspection of the Premises in order to confirm the completeness
and accuracy of the furniture shown on the Inventory List, and to give Tenant
the opportunity to confirm that the Furniture is in good condition and repair.
Subject to such "walk-through" inspection, Tenant accepts the Furniture in its
"as-is" condition, without any representation or warranty by Landlord. LANDLORD
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS AND/OR WARRANTIES, INCLUDING, WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR
PURPOSE WITH RESPECT TO THE FURNITURE. During the Term of this Lease, Tenant
shall maintain and repair the Furniture as reasonably necessary, and shall
insure the same along with its other personal property pursuant to ARTICLE 10
hereof. Upon the expiration or earlier termination of this Lease, Tenant shall
surrender the Furniture to Landlord in the same condition and repair as on the
Lease Commencement Date, reasonable wear and tear and damage by casualty
excepted.
1.5 CARD KEY ACCESS. If the Premises or the Building are equipped with
a card key access system, Tenant's use of the card key access systems shall be
subject to the Rules and Regulations set forth on EXHIBIT D, attached hereto.
Tenant shall install and operate its own internal card reader system (including,
without limitation, card access to the entrance doors to the Premises), and
shall provide Landlord with cards providing Landlord with access to the Premises
in accordance with the terms of this Lease. Except as expressly provided herein,
Tenant shall not have access to those portions of the Building not comprising
the Common Areas or the Premises, which shall remain subject to Landlord's sole
and exclusive control. Nothing herein shall preclude Landlord from accessing the
Premises, subject to the requirements of ARTICLE 27, for purposes of undertaking
maintenance or repairs or as otherwise provided in this Lease. Landlord makes no
representations or warranties (and hereby expressly disclaims any
representations and warranties, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF MERCHANTABILITY) regarding
the suitability of any key card access system for Tenant's particular purposes.
In no event shall Landlord be responsible or liable to Tenant or its employees
for any unauthorized entry upon the Premises or for any failure of the access
system to prevent such entry. Landlord agrees to continue to keep the Building
and Common Areas protected by the current card access monitoring system, or a
substantially similar system.
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ARTICLE 2
LEASE TERM
2.1 LEASE TERM. The TCCs of this Lease shall be effective as of the
date of this Lease as set forth in SECTION 1 of the Summary (the "EFFECTIVE
DATE"). The initial term of this Lease (the "INITIAL TERM") shall be as set
forth in SECTION 3.1 of the Summary, shall commence on the date set forth in
SECTION 3.2 of the Summary (the "LEASE COMMENCEMENT DATE"), and shall terminate
on the date set forth in SECTION 3.4 of the Summary (the "LEASE EXPIRATION
DATE") unless this Lease is sooner terminated as hereinafter provided.
2.2 OPTION TO EXTEND. Provided Tenant is not in default under the TCC
of this Lease beyond any applicable notice and cure periods at the time it
exercises the option or at commencement of the Option Term, Tenant shall have
the right and option to extend this lease ("Option to Extend") for one
additional option period of three years (the "Option Term") upon the same terms
and conditions herein set forth except that the Base Rent shall be adjusted in
accordance with SECTION 3.1.1, below. To exercise its Option to Extend, Tenant
must give Landlord notice in writing sent so as to be received at least nine (9)
months but not more than twelve (12) months prior to the expiration of the
initial Lease Term. At Landlord's election, Tenant's exercise of its Option
shall be void and of no effect if Tenant is in default of this Lease beyond any
applicable notice and cure periods on the date it exercises its Option to Extend
or on the expiration of the initial Lease Term. Notwithstanding anything to the
contrary, in no event shall Tenant be allowed to exercise the Option to Extend
when a subtenant or assignee is in possession of more than fifty percent (50%)
of the Premises. As used in this Lease, "LEASE TERM" shall mean the Initial
Term, and the Option Term, if duly exercised.
ARTICLE 3
BASE RENT AND INTERIM RENT
3.1 BASE RENT. Commencing on the Rent Commencement Date, Tenant shall
pay, without prior notice or demand, to Landlord or Landlord's agent at the
management office of the Project, or, at Landlord's option, at such other place
as Landlord may from time to time designate in writing, by a check for currency
which, at the time of payment, is legal tender for private or public debts in
the United States of America, base rent ("BASE RENT") as set forth in SECTION 4
of the Summary, payable in equal monthly installments as set forth in SECTION 4
of the Summary in advance on or before the first day of each and every calendar
month during the Lease Term, without any setoff or deduction whatsoever, unless
otherwise expressly permitted under this Lease. The Base Rent for the first full
month of the Initial Term in which rent is due (i.e. the first month measured
from the Rent Commencement Date) shall be paid upon execution of this Lease
(minus a pro-rata share of the credit due pursuant to Section 21.2 (not to
exceed $833.33 per month) for the period from the date of issuance of the letter
of credit to July 31, 2003). If any Rent payment date (including the Rent
Commencement Date) falls on a day of the month other than the first day of such
month or if any payment of Rent is for a period which is shorter than one month,
the Rent for any fractional month shall accrue on a daily basis for the period
from the date such payment is due to the end of such calendar month or to the
end of the Lease Term at a rate per day which is equal to l/365 of the
applicable annual Rent. All other
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payments or adjustments required to be made under the TCCs of this Lease that
require proration on a time basis shall be prorated on the same basis. The "RENT
COMMENCEMENT DATE" shall be July 15, 2003.
3.1.1 BASE RENT DURING OPTION TERM. If Tenant exercises its
Option to Extend, the Base Rent for the Premises during the Option Term shall be
equal to the then current fair market rent for the Premises based on rents then
being charged for space in Comparable Buildings, as reasonably determined by
Landlord.
3.2 INTERIM RENT. Tenant may, upon notice to Landlord, occupy all or a
portion of the Premises (the "INTERIM PREMISES") prior to the Rent Commencement
Date, and in such event, Tenant shall pay to Landlord "INTERIM RENT" for such
portion of the Premises equal to the actual Direct Expenses allocable to the
Interim Premises plus Tenant's Electricity Cost for the Interim Premises (at the
same rate set forth in SECTION 4.7, below) plus any other Additional Rent
payable under this Lease with respect to the Interim Premises, based on
Landlord's reasonable estimate of the total of such amounts, payable in monthly
installments, commencing on the date that Tenant first occupies any portion of
the Interim Premises and thereafter on the first day of each month until the
Rent Commencement Date. At least thirty (30) days prior to Tenant's occupying
any portion of the Interim Premises, Landlord and Tenant shall agree in writing
on the amount and location of such space.
ARTICLE 4
ADDITIONAL RENT
4.1 GENERAL TERMS. In addition to paying the Base Rent specified in
ARTICLE 3 of this Lease, Tenant shall pay "TENANT'S SHARE" of the annual "DIRECT
EXPENSES," as those terms are defined in SECTIONS 4.2.6 and 4.2.2 of this Lease,
respectively, which are in excess of the amount of Direct Expenses applicable to
the "Base Year," as that term is defined in SECTION 4.2.1, below; provided,
however, that in no event shall any decrease in Direct Expenses for any Expense
Year below Direct Expenses for the Base Year entitle Tenant to any decrease in
Base Rent or any credit against sums due under this Lease. In addition to the
foregoing obligations, Tenant shall also pay "TENANT'S ELECTRICITY COST," as
defined in Section 4.7 of this Lease, separately from any increases in Direct
Expenses. Such payments by Tenant, together with any and all other amounts
payable by Tenant to Landlord pursuant to the TCCs of this Lease, are
hereinafter collectively referred to as the "ADDITIONAL RENT," and the Base Rent
and the Additional Rent are herein collectively referred to as "RENT." All
amounts due under this ARTICLE 4 as Additional Rent shall be payable for the
same periods and in the same manner as the Base Rent. The obligations of Tenant
to pay the Additional Rent provided for in this ARTICLE 4 shall survive the
expiration or earlier termination of the Lease Term for such period of time as
is required to reconcile the Estimated Excess and Overpayment Amount of Direct
Expenses pursuant to SECTION 4.4.1 hereof; provided, however, that any other
contingent or unliquidated contractual claims of Landlord or Tenant (e.g.,
indemnity) shall survive the expiration or earlier termination of this Lease
only for so long as any applicable statute of limitations would permit such
actions under
Massachusetts law.
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4.2 DEFINITIONS OF KEY TERMS RELATING TO ADDITIONAL RENT. As used in
this ARTICLE 4, the following terms shall have the meanings hereinafter set
forth:
4.2.1 "BASE YEAR" shall mean the period set forth in SECTION 5
of the Summary.
4.2.2 "DIRECT EXPENSES" shall mean "Operating Expenses" and
"Tax Expenses".
4.2.3 "EXPENSE YEAR" shall apply only to Operating Expenses
and shall mean each calendar year in which any portion of the Lease Term falls,
through and including the calendar year in which the Lease Term expires.
4.2.4 "OPERATING EXPENSES" shall mean, except as otherwise
provided in this SECTION 4.2.4 or otherwise in this Lease, all expenses, costs
and amounts of every kind and nature which Landlord pays or accrues during any
Expense Year because of or in connection with the ownership, management,
maintenance, security, repair, replacement, restoration or operation of the
Project, or any portion thereof, subject to the allocation thereof as set forth
in SECTION 4.3, below. Without limiting the generality of the foregoing,
Operating Expenses shall specifically include any and all of the following: (i)
the cost of supplying utilities (excepting Tenant's Electricity Cost and costs
payable by Tenant pursuant to Section 4.7.2), operating, repairing, maintaining,
and renovating the utility, telephone, and all other systems and equipment and
components thereof of the Buildings and the Project, and the cost of maintenance
and service contracts in connection therewith and payments under any equipment
rental agreements; (ii) the cost of all insurance carried by Landlord in
connection with the Project and any deductibles; (iii) the cost of landscaping
the Project, or any portion thereof; (iv) costs incurred in connection with the
parking areas servicing the Project; (v) fees and other costs, including
management fees (not to exceed three percent (3%) of gross receipts), consulting
fees, legal fees and accounting fees, of all contractors and consultants in
connection with the management, operation, maintenance and repair of the
Project; (vi) wages, salaries and other compensation and benefits, including
taxes levied thereon, of all persons engaged in the operation, maintenance and
security of the Project; provided, however, that wages and/or benefits
attributable to personnel above the level of property manager for the Project or
property engineer for the Project shall not be included in Operating Expenses;
(vii) the cost of janitorial, alarm, security and other services, replacement of
wall and floor coverings, ceiling tiles and fixtures in common areas,
maintenance and replacement of curbs and walkways, repair to roofs and
re-roofing; (viii) excepting the items that are at Landlord's sole cost under
SECTION 7.1, repairs or replacements and other costs incurred in connection with
the Project that are capital in nature under generally accepted accounting
principles; provided, however, that any such capital expenditure shall be
amortized (with interest at a commercially reasonable rate) over its useful life
(determined in accordance with Treasury Regulations) and the amortized portion
and interest applicable to the respective Expense Year shall be included in
Operating Expenses; and (ix) costs, fees, charges or assessments imposed by, or
resulting from any mandate imposed on Landlord by, any federal, commonwealth,
state or local government for fire and police protection, trash removal,
community services, or other services which are not duplicative of "Tax
Expenses" as that term is defined in SECTION 4.2.5, below.
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Notwithstanding anything in this SECTION 4.2.4 to the contrary, for
purposes of this Lease, Operating Expenses shall not, however, include the
following:
(A) marketing costs, costs of leasing commissions, renovations,
brokerage fees, attorneys' fees and other costs and expenses incurred in
connection with Landlord's preparation, negotiation, dispute resolution
and/or enforcement of leases, including court costs and attorneys' fees and
disbursements in connection with any summary proceeding to dispossess any
tenant, or incurred in connection with disputes with prospective tenants,
employees, purchasers or mortgagees;
(B) financing and refinancing costs, interest, principal, points and
fees on debts or amortization on any mortgage or mortgages or any other
debt instrument encumbering the Building or the Project and any commissions
in connection therewith;
(C) the original costs of constructing the Building and the Project,
or any additions to or expansions of the Property or the Building and all
other capital additions thereto;
(D) expenses to the extent Landlord will be reimbursed by another
source (excluding Operating Expense reimbursements by tenants), including
without limitation replacement of any items covered by warranties;
(E) costs incurred to benefit (or resulting from) a specific tenant or
items and services selectively supplied to any tenant other than Tenant
(e.g., excess utilities);
(F) expenses for the defense of Landlord's title to the Project;
(G) expenses incurred in the maintenance, repair and replacement of
the Building Structure (as defined in SECTION 7.1);
(H) charitable or political contributions;
(I) expenses incurred to comply with governmental regulations
(including without limitation all environmental laws and the Americans with
Disabilities Act), court order, decree or judgment in effect prior to the
Effective Date, except to the extent any noncompliance results from
Tenant's use and occupancy of the Premises;
(J) costs of repairs, restoration or replacement occasioned by fire or
other casualty or caused by the exercise of the right of eminent domain,
whether or not insurance proceeds or condemnation award proceeds are
recovered or adequate for such purposes (except to the extent of the amount
of the deductible, which shall be included in Operating Expenses);
(K) rental on ground leases or other underlying leases and costs of
defending any lawsuits with mortgagees or ground landlords;
(L) costs associated with maintaining Landlord's existence as a
corporation or other legal entity; and
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(M) All electrical charges included in Tenant's Electricity Cost;
(N) leasehold improvements, alterations and decorations which are made
in connection with the preparation of any portion of the Project for
occupancy of that portion of the Project by a new tenant,
(O) costs incurred in connection with the making of repairs or
replacements which are the obligation of another tenant or occupant of the
Property;
(P) costs (including, without limitation, attorneys' fees and
disbursements) incurred in connection with any judgment, settlement or
arbitration award resulting from any tort liability;
(Q) federal and state income taxes, excess profits taxes, franchise
taxes, gift taxes, capital stock tax, inheritance and succession taxes,
profit, use, occupancy, gross receipts, rental, capital gains, capital
stocks income and transfer taxes imposed upon Landlord or the Property,
estate taxes and any other taxes to the extent applicable to Landlord's
general or net income;
(R) any rent, additional rent or other charges under any lease or
sublease to or assumed by Landlord;
(S) legal and other professional fees for matters not relating to the
normal administration and operation of the Property or relating to matters
which are excluded from Operating Expenses for the Project;
(T) any costs or expense related to vacant space intended for
occupancy by tenants which would not be included in Operating Expenses is
the space were occupied;
(U) sculpture, paintings and other works of art;
(V) the cost of environmental monitoring, compliance, testing and
remediation performed in, on, and around the Project as a result of the
violation of any Environmental Law as defined in Section 29.31, but not
including ordinary environmental monitoring and testing related to, for
example, items such as air quality monitoring and filtration in the
Building; provided, however, nothing in this subsection (V) shall limit
Tenant's liability for violations of Environmental Law caused by, or
contributed to by Tenant; and (W) any fees, fines or penalties arising from
Landlord's violation of Applicable Laws, as defined in Article 24,
including costs of litigation and attorneys' fees related thereto.
4.2.5 TAXES.
4.2.5.1 "TAX EXPENSES" shall mean all federal, state,
commonwealth, county, or local governmental or municipal taxes, fees, charges or
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kind and nature, whether general, special, ordinary or extraordinary,
(including, without limitation, real estate taxes, general and special
assessments, transit taxes, leasehold taxes or taxes based upon the receipt of
rent, measured as if the Project were the only property owned by Landlord,
including gross receipts, service tax, value added tax or sales taxes applicable
to the receipt of rent or services provided herein, and unless required to be
paid by Tenant, personal property taxes imposed upon the fixtures, machinery,
equipment, apparatus, systems and equipment, appurtenances, furniture and other
personal property used in connection with the Project, or any portion thereof),
which shall be paid or accrued during any Tax Year (as defined in SECTION
4.2.5.4) because of or in connection with the ownership, leasing and operation
of the Project, or any portion thereof.
4.2.5.2 Tax Expenses shall include, without limitation:
(i) any tax on the rent, right to rent or other income from the Project, or any
portion thereof, or as against the business of leasing the Project, or any
portion thereof (measured as if the Project were the only property owned by
Landlord); (ii) any assessment, tax, fee, levy, or charge allocable to or
measured by the area of the Premises or the Rent payable hereunder, including,
without limitation, any business or gross income tax or excise tax with respect
to the receipt of such rent, or upon or with respect to the possession, leasing,
operating, management, maintenance, alteration, repair, use or occupancy by
Tenant of the Premises, or any portion thereof (measured as if the Project were
the only property owned by Landlord); (iii) any assessment, tax, fee, levy or
charge, upon this transaction; and (iv) the amount of any payments, payments in
lieu of taxes, or other consideration (in cash or otherwise) that Landlord is
required to make to any taxing authority in connection with any tax abatement or
tax exemption agreements benefiting the Project. Notwithstanding the foregoing,
Tax Expenses shall expressly exclude any tax penalties incurred by, or assessed
against, Landlord relating to Landlord's failure to pay Tax Expenses when due.
4.2.5.3 Any costs and expenses (including, without
limitation, reasonable attorneys' fees) incurred in attempting to protest,
reduce or minimize Tax Expenses shall be included in Tax Expenses in the Tax
Year such expenses are paid. Tenant's Share of any refunds of Tax Expenses in
excess of the Base Year Tax Expenses shall be credited against Tenant's Tax
Expenses and any excess shall be refunded to Tenant regardless of when received,
based on the Tax Year to which the refund is applicable, provided that in no
event shall the amount to be refunded to Tenant for any such Tax Year exceed the
total amount paid by Tenant as Additional Rent under this ARTICLE 4 for such Tax
Year. If Tax Expenses for any period during the Lease Term or any extension
thereof are increased after payment thereof for any reason, including, without
limitation, error or reassessment by applicable governmental or municipal
authorities, Tenant shall pay Landlord within fifteen (15) business days after
receipt of Landlord's written demand Tenant's Share of any such increased Tax
Expenses included by Landlord as Tax Expenses pursuant to the TCCs of this
Lease. Notwithstanding anything to the contrary contained in this SECTION 4.2.5
(except as set forth in SECTION 4.2.5.1, above), there shall be excluded from
Tax Expenses (i) all excess profits taxes, franchise taxes, gift taxes, capital
stock taxes, inheritance and succession taxes, estate taxes, federal and
commonwealth/state income taxes, and other taxes to the extent applicable to
Landlord's general or net income (as opposed to rents, receipts or income
attributable to operations at the Project), (ii) any items included as Operating
Expenses, and (iii) any items paid by Tenant under SECTION 4.5 of this Lease.
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4.2.5.4 Landlord and Tenant agree that the Base Year for
the purposes of calculating Tenant's Additional Rent liability for Tax Expenses
shall be the calendar year 2003 (which shall be the sum of one-half of the Tax
Expenses for the period from July 1, 2002 through June 30, 2003 and one-half of
the Tax Expenses for the period from July 1, 2003 through June 30, 2004). Each
subsequent twelve (12) month calendar year during the Lease Term shall be
referred to as a "TAX YEAR", prorated for any partial Tax Year at the end of the
Lease Term. At Landlord's election, Tenant shall pay Tenant's Share of any
Excess (as defined in SECTION 4.4) of Tax Expenses pursuant to SECTIONS 4.4.1
and 4.4.2, or within fifteen (15) business days after receipt of Landlord's
written demand following the expiration or earlier termination of the Lease
Term. Landlord shall provide copies of any invoices or other notices from the
taxing authorities evidencing the Tax Expenses to Tenant after receipt of
Tenant's written request for such documentation.
4.2.6 "TENANT'S SHARE" of Operating Expenses and Tax
Expenses shall mean the percentage set forth in SECTION 6 of the Summary.
4.3 ALLOCATION OF DIRECT EXPENSES. The parties acknowledge that the
Building is a part of a multi-building project and that the costs and expenses
incurred in connection with the Project (i.e. the Direct Expenses) will be
shared between the tenants and occupants of the Building and the tenants and
occupants of the other buildings in the Project. Accordingly, as set forth in
SECTION 4.2 above, Direct Expenses shall be determined for the Project as a
whole, and Tenant shall be responsible for paying Tenant's Share of the Direct
Expenses, provided, however, Landlord in its sole discretion, may determine and
allocate some or all Direct Expenses which are incurred for the benefit of only
one building to that building individually, in which case, if said expenses are
allocated to the Building, Tenant's Share of such Direct Expenses shall be based
on the percentage determined by dividing the rentable square footage of the
Premises by the rentable square footage of the Building. To the extent the
entire Project is not at least 95% occupied in any year, Landlord shall adjust
the variable components of Operating Expenses for the Base Year, and for any
such Expense Year, based on Landlord's reasonable, good faith estimate and
reasonable data available to Landlord, to reflect the expenses that would have
been incurred had the Project been 95% occupied, so that the Operating Expenses
shall be equitably allocate among the tenants of the Project; and the amount so
determined shall be deemed to have been the amount of Operating Expenses for
such year attributable to the Project. In no event shall Landlord be entitled to
collect from tenants more than 100% of Direct Expenses.
4.4 CALCULATION AND PAYMENT OF ADDITIONAL RENT. With respect to
Operating Expenses, if for any Expense Year ending or commencing within the
Lease Term, Tenant's Share of Operating Expenses for such Expense Year exceeds
the annualized amount of Tenant's Share of Operating Expenses applicable to the
Base Year, then Tenant shall pay to Landlord, in the manner set forth in
SECTIONS 4.4.1 AND 4.4.2, below, and as Additional Rent, an amount equal to the
excess (the "OE EXCESS"). With respect to Tax Expenses, if for any Tax Year
ending or commencing within the Lease Term, Tenant's Share of Tax Expenses for
such Tax Year exceeds the annualized amount of Tenant's Share of Tax Expenses
applicable to the Base Year, then Tenant shall pay to Landlord, in the manner
set forth in SECTIONS 4.4.1 AND 4.4.2, below, and as Additional Rent, an amount
equal to the excess (the "TAX EXCESS"). The OE Excess plus the Tax Excess are
sometimes referred to herein collectively as the "EXCESS".
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4.4.1 STATEMENT OF ACTUAL DIRECT EXPENSES AND PAYMENT BY
TENANT. Within one hundred twenty (120) days after the end of each applicable
Expense Year, Landlord will deliver to Tenant a statement (the "STATEMENT"),
which shall state the Direct Expenses incurred or accrued for such preceding
Expense Year, and which shall indicate the amount of the Excess, if any. Upon
receipt of the Statement for each applicable Expense Year, if an Excess is
present, Tenant shall pay, with its next installment of Base Rent due, the full
amount of the Excess for such Expense Year, less the amounts, if any, paid
during such Expense Year as "ESTIMATED EXCESS," as that term is defined in
SECTION 4.4.2, below. In the event the Statement shows that the amount paid by
Tenant under Section 4.4.2, below, exceeded Tenant's Share of Direct Expenses
for the Expense Year in question (the "OVERPAYMENT AMOUNT"), then Landlord shall
credit the Overpayment Amount against the next due installments of Base Rent and
Additional Rent; provided, however, that with respect to the final Expense Year
of the Lease Term, Landlord shall pay to Tenant the Overpayment Amount, if any,
within thirty (30) days after Tenant's receipt of such Statement. The failure of
Landlord to timely furnish the Statement for any Expense Year shall not
prejudice Landlord or Tenant from enforcing its rights under this ARTICLE 4.
Even though the Lease Term has expired and Tenant has vacated the Premises, when
the final determination is made of Tenant's Share of Direct Expenses for the
Expense Year in which this Lease terminates, if an Excess if present, Tenant
shall pay such amount to Landlord within fifteen (15) business days after
Tenant's receipt of such final determination. If Tenant provides a written
request to Landlord within thirty (30) days after receipt of the Statement
provided in this SECTION 4.4.1, Tenant shall be entitled, during reasonable
business hours, to review Landlord's books and records on which Landlord has
calculated Direct Expenses and shall promptly thereafter provide its written
analysis of Direct Expenses to Landlord. If Tenant's review discloses any
overpayment by Tenant, Landlord shall either, at Landlord's option, credit such
amount to Tenant's next payment of Rent, or refund such amounts within thirty
(30) days after receipt of Tenant's calculations; if Tenant's review discloses
any underpayment by Tenant, Tenant shall provide such calculations to Landlord
and pay such amounts within thirty (30) days from the time it calculates, or
receives the calculation of such amounts. Tenant's audit shall be conducted by
either Tenant or a certified public accountant. Tenant's audit may not be
conducted by an individual or entity that is retained by Tenant primarily on a
contingent fee basis. Landlord shall keep copies of all records relating to the
calculation of, and the costs included in, Direct Expenses (and Estimated Direct
Expenses described in Section 4.4.2 below) for a period of at least two (2)
years (or such longer period as required by law). In the event the Tenant's
review establishes that Landlord's calculation of Tenant's Share of the increase
in Direct Expenses for any year is overstated by more than ten percent (10%),
Landlord shall also reimburse Tenant for the reasonable cost of its out of
pocket costs in conducting said review, up to a maximum of $1,000.00. This
section 4.4.1 shall survive the expiration or early termination of the Lease.
The results of the audit shall be kept confidential by Tenant (except as
disclosed to Tenant's attorneys and accountants (who shall also be bound by said
confidentiality provision) or as required to be disclosed by Tenant under
federal securities laws) and shall remain a private matter between Landlord and
Tenant, except as may be required by law. Any dispute between Landlord and
Tenant concerning any item of Direct Expenses shall not relieve Tenant of
liability for payment of all other Excess amounts of Direct Expenses. The
provisions of this SECTION 4.4.1 shall survive the expiration or earlier
termination of the Lease Term.
4.4.2 STATEMENT OF ESTIMATED DIRECT EXPENSES. In addition,
Landlord shall have the right to deliver from time to time an expense estimate
statement (the
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"ESTIMATE STATEMENT") which shall set forth Landlord's reasonable estimate (the
"ESTIMATE") of what the total amount of Direct Expenses for the then-current
Expense Year shall be and the estimated Excess (the "ESTIMATED EXCESS") as
calculated by comparing the Direct Expenses for such Expense Year, which shall
be based upon the Estimate, to the amount of Direct Expenses for the Base Year.
The failure of Landlord to furnish an Estimate Statement for any Expense Year
shall not preclude Landlord from enforcing its rights to collect any Estimated
Excess under this ARTICLE 4, nor shall Landlord be prohibited from revising any
Estimate Statement or Estimated Excess theretofore delivered to the extent
necessary. Upon receipt of any Estimate Statement, Tenant shall pay, with its
next installment of Base Rent due, the monthly amount of the Estimated Excess
for the then-current Expense Year indicated on the Estimate Statement. Until a
new Estimate Statement is furnished (which Landlord shall have the right to
deliver to Tenant at any time), Tenant shall continue to pay monthly, with the
monthly Base Rent installments, the monthly amount of the Estimated Excess set
forth in any previous Estimate Statement delivered by Landlord to Tenant. Tenant
shall be entitled, upon five (5) business day notice to Landlord given within
sixty days after receipt of the Estimate Statement, to review Landlord's books
and records to evaluate the accuracy of the Estimate Statements, subject to the
same provisions applicable to audits as stated in SECTION 4.4.1, above.
4.5 TAXES AND OTHER CHARGES FOR WHICH TENANT IS DIRECTLY RESPONSIBLE.
4.5.1 Tenant shall be liable for and shall pay before
delinquency taxes levied against Tenant's equipment, furniture, fixtures and any
other personal properly located in or about the Premises (including without
limitation taxes levied against the Furniture, if any). If any such taxes on
Tenant's equipment, furniture, fixtures and any other personal property are
levied against Landlord or Landlord's property or if the assessed value of
Landlord's property is increased by the inclusion therein of a value placed upon
such equipment, furniture, fixtures or any other personal property and if
Landlord pays any properly assessed taxes based upon such increased assessment,
which Landlord shall have the right to do upon fifteen (15) business days prior
written notice to Tenant, including reasonably satisfactory backup documentation
evidencing such expenses, Tenant shall upon fifteen (15) business days notice to
Tenant repay to Landlord the taxes so levied against Landlord or the proportion
of such taxes resulting from such increase in the assessment, as the case may
be.
4.5.2 If the Alterations in the Premises, whether installed
and/or paid for by Landlord or Tenant and whether or not affixed to the real
property so as to become a part thereof, are assessed for real property tax
purposes at a valuation higher than the valuation at which tenant improvements
conforming to Landlord's standard tenant improvements in other space in the
Building leased to or offered to lease to other tenants, which improvements are
substantially similar to those in the Premises as of the Lease Commencement Date
(the "BUILDING STANDARD"), are assessed (as reasonably determined by Landlord),
then the Tax Expenses levied against Landlord or the property by reason of such
excess assessed valuation shall be deemed to be taxes levied against personal
property of Tenant and shall be governed by the provisions of SECTION 4.5.1,
above. Landlord shall reciprocally enforce this provision against other tenants
in the Project.
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4.6 LANDLORD'S BOOKS AND RECORDS. Subject to Tenant's right to review
as provided in SECTION 4.4.1, Landlord's books and records evidencing Operating
Expenses will be conclusive absent manifest error.
4.7 TENANT'S ELECTRICITY COST. The Premises are currently not
separately metered and, to account for Tenant's electrical use in the Premises,
Tenant shall pay to Landlord as Additional Rent an initial flat monthly fee of
Four Thousand Six Hundred Forty-five Dollars ($4,645.00), which amount is
calculated based on the rate of One Dollar ($1.00) per year per rentable square
foot of the Premises ("TENANT'S ELECTRICITY COST"), and is subject to adjustment
based on Landlord's reasonable estimate of Tenant's electrical usage.
4.7.1 Notwithstanding the preceding sentence, Landlord or
Tenant (at the requesting party's sole cost and expense) shall have the right to
separately meter (or install a sub-meter or check meter for) the Premises at any
time during the Lease Term and, thereafter, all charges for Tenant's electrical
use shall be as reflected by the meter.
4.7.2 In the event that Landlord or Tenant installs meters
(direct, submeters, checkmeters or flowmeters) which enable Landlord to measure
the electricity usage for the air handlers and chillers which service the Lab
Areas (as defined in SECTION 6.2, below) of the Premises, then, in addition to
Tenant's Electricity Cost, Tenant shall pay to Landlord, as Additional Rent, the
electrical expenses attributable to the chillers and air handlers which service
the labs within the Premises (including, without limitation, the "freezer
farm"). In the event that such usage is not separately metered, then Landlord
may give Tenant written notice of Landlord's estimate of Tenant's share of such
expenses, along with the information utilized by Landlord in reaching such
determination, and Tenant shall reimburse Landlord, as Additional Rent for such
electrical expenses (in addition to Tenant's Electricity Cost).
ARTICLE 5
USE OF PREMISES
5.1 PERMITTED USE. Tenant shall use the Premises solely for the
Permitted Use set forth in SECTION 7 of the Summary, and Tenant shall not use or
permit the Premises or the Project to be used for any other purpose or purposes
whatsoever without the prior written consent of Landlord, which may be withheld
in Landlord's sole discretion.
5.2 PROHIBITED USES. The uses prohibited under this Lease shall
include, without limitation, use of the Premises or a portion thereof for (i)
offices of any agency or bureau of the United States or any commonwealth or
state or political subdivision thereof; (ii) offices or agencies of any foreign
governmental or political subdivision thereof; (iii) offices of any health care
professionals or service organization (operation of a biological research and
testing lab as currently performed by Tenant excepted); (iv) schools or other
training facilities which are not ancillary to corporate, executive or
professional office use; (v) retail or restaurant uses; (vi) commercial
broadcast radio or television stations; (vii) telemarketing or call center; or
(viii) collection agency. Tenant further covenants and agrees that Tenant shall
not use, or suffer or permit any person or persons to use, the Premises or any
part thereof for any use or purpose contrary to the provisions of the Rules and
Regulations set forth in EXHIBIT D, attached hereto, or
17
in violation of the laws of the United States of America, the Commonwealth of
Massachusetts, or the ordinances, regulations or requirements of the local
municipal or county governing body or other lawful authorities having
jurisdiction over the Project including, without limitation, any such laws,
ordinances, regulations or requirements relating to Hazardous Materials as
defined in SUBSECTION 29.31.1 below. Tenant shall not do or permit anything to
be done in or about the Premises which will in any material way interfere with
the rights, safety and quiet enjoyment of other tenants or occupants of the
Building and the Project, or use or allow the Premises to be used for any
unlawful purpose, nor shall Tenant cause, maintain or permit any nuisance in, on
or about the Premises or the Project.
5.3 CC&Rs. Tenant shall comply with all recorded covenants, conditions,
and restrictions ("CC&R's") affecting the Project (including any future CC&R's
which Landlord in its reasonable discretion may deem reasonably necessary or
appropriate) to the extent they apply to the Premises or the Common Areas
provided they do not materially interfere with Tenant's use and occupancy of the
Premises and, subject to the TCC of this lease, the Common Areas, and this Lease
shall be subordinate to any CC&Rs provided that such CC&Rs do not materially
interfere with Tenant's use and occupancy of the Premises and, subject to the
TCC of this Lease, the Common Areas.
5.4 CONDITION OF PREMISES. Landlord shall deliver the Premises
(including, but not limited to HVAC (as hereinafter defined), electrical,
plumbing, sewer and other Building systems, and the exterior walls, roof,
parking area, landscaping and walkways) to Tenant on the Lease Commencement Date
and Tenant shall accept the Premises in their "AS IS" condition. To Landlord's
knowledge, as of the date of this lease, all electrical, plumbing, sewer and
other Building Systems servicing the Premises and exterior walls are in good
operating condition. In the event that any electrical, plumbing, sewer or other
Building Systems servicing the Premises are not in good operating condition on
the Lease Commencement Date, provided that Tenant gives Landlord written notice
of the nature of the problem prior to the earlier of: (i) Tenant's commencing
any changes, alterations or construction in the Premises, or (ii) thirty (30)
days after the Lease Commencement Date, time being of the essence, Landlord
shall cause such systems to be placed into good operating condition. Other than
as expressly set forth in this Lease, Tenant acknowledges that neither Landlord
nor any agent of Landlord has made any representation or warranty with respect
to the Premises or with respect to the present or future suitability of any part
of the Premises for the conduct of Tenant's business or the uses proposed by
Tenant. Tenant hereby accepts the Premises, the Building, and all improvements
thereon, in their existing condition, subject to all applicable zoning,
municipal, county and state (commonwealth) laws, ordinances and regulations
governing and regulating the use of the Premises, and any covenants or
restrictions of record, and accepts this Lease subject to all of the foregoing
and to all matters disclosed in this Lease.
5.5 DEMISING PLAN. The Premises are shown on the space plan attached
hereto as EXHIBIT A and hereby made a part hereof. Tenant shall pay its costs
associated with the installation of Tenant's network and other cabling,
telecommunications infrastructure, and all of its moving costs incurred in
connection with Tenant's occupancy of the Premises.
5.6 RULES AND REGULATIONS. Tenant shall comply with Landlord's rules
and regulations respecting the management, care, use and safety of the Premises,
Building and
18
Project, including without limitation, parking areas, landscaped areas,
walkways, elevators, loading docks, hallways and other Common Areas and
facilities provided for the common use and convenience of tenants. Such rules
and regulations are attached hereto as EXHIBIT D and may be amended from time to
time at Landlord's reasonable discretion, upon written notice to Tenant (as
amended from time to time, the "RULES AND REGULATIONS"), so long as such
modifications do not materially diminish or interfere with Tenant's use and
occupancy of the Premises for the Permitted Use. At no time shall Landlord
modify the Rules and Regulations to prohibit or materially interfere with
Tenant's use of the Premises for the Permitted Use. Landlord agrees that any
enforcement of the Rules and Regulations shall be done in a reasonable, uniform
and non-discriminatory manner. Tenant's use of the Premises for the conduct of
Tenant's business and research activities, as currently conducted by Tenant as
of the date of this Lease, and otherwise in accordance with the Permitted Use
and the TCC of this Lease, shall not be deemed to be "injurious to the
reputation of the Building" under Section A. 20 of Schedule D.
ARTICLE 6
SERVICES AND UTILITIES
6.1 STANDARD TENANT SERVICES. Landlord shall maintain and operate the
Building in a manner consistent with other Comparable Buildings (as defined
below), and provide ingress and egress control services to the Building in a
first-class manner consistent with the Comparable Buildings, shall keep the
Building Structure and Building Systems in first-class condition and repair
consistent with the Comparable Buildings, and all of such expenses shall be
included in Operating Expenses, except to the extent such expenses are
specifically excluded from Operating Expenses in accordance with Section 4.2.4.
(As used in this Lease, the term "COMPARABLE BUILDINGS" means buildings which
are comparable to the Building in terms of age, quality of construction, level
of service and amenities, size and appearance and located in a comparable
geographical area, as reasonably determined by Landlord.) During the Lease Term,
Landlord shall provide the following services (and shall include the costs
thereof in Operating Expenses, except as otherwise expressly set forth in this
Lease):
6.1.1 Subject to limitations imposed by all governmental
rules, regulations guidelines applicable thereto, from Monday through
Friday from 8 a.m. to 6 p.m. (but excluding Holidays, as defined below)
(such dates and times herein called "BUILDING HOURS"), Landlord shall
provide heating and air conditioning ("HVAC") to the office portions of
the Premises. Tenant may request and Landlord shall provide HVAC service
at times other than during Building Hours to the Premises (other than
the Lab Areas, as defined in SECTION 6.2, below) at the rate of $50.00
per hour, with a minimum charge of $100.00 (two hours);
provided, however, that Tenant shall only be charged for after hours
HVAC actually requested by Tenant. Landlord reserves the right
reasonably to increase the cost for after hours air conditioning.
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6.1.2 Landlord shall provide city water from the regular
Building outlets for drinking, lavatory and toilet purposes in the
Common Areas within the Building.
6.1.3 On weekdays during the Lease Term, Landlord shall provide
janitorial services to the Premises (unless Tenant notifies Landlord
that Tenant will be privately contracting for janitorial services within
its labs), except the date of observation of the Holidays, in and about
the Premises and window washing services in a manner consistent with
Comparable Buildings.
6.1.4 Landlord shall provide nonexclusive, non-attended
automatic passenger elevator service for all elevators in the Building
during Building Hours and, subject to closures for routine maintenance
or repair, shall have one (1) elevator available at all other times to
provide service to the Premises; provided, however, Landlord shall use
reasonable efforts to schedule the timing of such routine maintenance or
repair, and shall otherwise use commercially reasonable efforts to
minimize any interference with Tenant's Permitted Use and enjoyment of
the Premises.
6.1.5 Landlord shall provide electricity for lights and
electrical outlets within the Premises, and Tenant shall pay for such
electricity pursuant to Tenant's obligation to pay Tenant's Electricity
Charge.
6.1.6 Landlord shall provide a security guard to patrol the
Project between the hours of 6 p.m. and 8 a.m., and shall maintain the
existing current card access monitoring system, or a substantially
similar system.
6.1.7 Landlord shall provide exterior and interior window
washing with frequency as reasonably determined by Landlord.
6.1.8 Landlord shall provide disposal of garbage, trash and
refuse from the Premises (other than and excluding Tenant's
laboratories) and the Property, excluding the disposal of Hazardous
Materials (as defined in Section 29.31) and other hazardous wastes or
substances and medical wastes or substances used, stored or generated by
Tenant or in connection with Tenant's use of the Premises, which
materials shall be disposed of in accordance with all Applicable Laws by
Tenant at its sole cost and expense.
6.1.9 Landlord shall provide for routine clearance and removal
of snow and ice from the parking areas, driveways and walkways of the
Property.
6.1.10 Landlord shall provide a monument sign near the entrance
to the Project with tenants' names listed on it.
6.1.11 Such other services as are specifically identified in
this Lease.
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For the purposes of this Lease the term "HOLIDAY" shall mean and refer to
New Year's Day, Presidents' Day, Memorial Day, Independence Day, Labor Day,
Columbus Day, Veterans' Day, Thanksgiving Day, day after Thanksgiving Day and
Christmas Day.
6.2 SPECIAL HVAC SERVICES. Subject to the provisions of SECTIONS 4.7.2
AND 7.1, and provided that Tenant designs and modifies the HVAC system ductwork
and controls for the sixth floor of the Premises to the "freezer farm" area of
the Premises and any other lab areas within the Premises (collectively, the "LAB
AREAS") designated on EXHIBIT A, so that the Lab Areas can be cooled separately
from the remainder of the Building (e.g. while other areas of the Building are
being heated, or not being cooled), Landlord shall provide continuous air
conditioning to the Lab Areas, provided however, Landlord shall not be liable to
Tenant for any unexpected outages or reductions in electrical power or air
conditioning supply or any damages in connection therewith. Notwithstanding the
foregoing, in the event that Landlord must shut down HVAC or electrical power to
the Premises or any portion thereof for maintenance or repairs, Landlord shall
give Tenant at least twenty-four hours (24) advance notice of the estimated time
and date for such work, and the length of time service is expected to be
interrupted and provided that Landlord has given Tenant such notice, Landlord
shall not be liable to Tenant for any such scheduled outages or reductions in
electrical power or air conditioning supply or any damages in connection
therewith. Tenant shall be solely responsible for providing back-up power for
air conditioning for the Lab Areas and back-up air conditioning for the Lab
Areas should Tenant deem it necessary (for scheduled as well as unscheduled
outages or reductions).
6.3 REQUIREMENTS OF TENANT. At all times during the Lease Term, Tenant
shall cooperate with Landlord and abide by all regulations and requirements that
Landlord may reasonably prescribe and provide to Tenant in writing for the
proper functioning and protection of the Building HVAC, electrical, mechanical
and plumbing systems.
6.4 INTERRUPTION OF USE. Except as expressly provided herein, Tenant
agrees that Landlord shall not be liable for damages, by abatement of Rent or
otherwise, for failure to furnish or delay in furnishing any service (including
telephone and telecommunication services), or for any diminution in the quality
or quantity thereof, when such failure or delay or diminution is occasioned, in
whole or in part, by breakage, repairs, replacements, or improvements, by any
strike, lockout or other labor trouble, by inability to secure electricity, gas,
water, or other fuel at the Building or Project after reasonable effort to do
so, by any riot or other dangerous condition, emergency, accident or casualty
whatsoever, by act or default of Tenant or other parties, or by any other cause;
and such failures or delays or diminution shall never be deemed to constitute an
eviction or disturbance of Tenant's use and possession of the Premises or
relieve Tenant from paying Rent or performing any of its obligations under this
Lease (provided, however, nothing in the foregoing sentence is intended to
relieve Landlord from its obligations under this Lease, and/or to excuse
Landlord from curing any default by Landlord under this Lease). Furthermore,
Landlord shall not be liable under any circumstances for a loss of, or injury
to, property or for injury to, or interference with, Tenant's business,
including, without limitation, loss of profits, however occurring, through or in
connection with or incidental to a failure to furnish any of the services or
utilities as set forth in this ARTICLE 6. Under all circumstances, to the extent
there is an interruption in any service relating to the Premises for which
Landlord maintains repair responsibility under this Lease, Landlord shall use
commercially reasonable efforts to remedy
21
the problem within twenty-four (24) hours of receipt of notice from Tenant.
Landlord may comply with voluntary controls or guidelines promulgated by any
governmental entity relating to the use or conservation of energy, water, gas,
light or electricity or the reduction of automobile or other emissions without
creating any liability of Landlord to Tenant under this Lease, provided that (i)
the Premises are not thereby rendered untenantable, and (ii) the same does not
materially adversely interfere with Tenant's Permitted Use of the Premises.
ARTICLE 7
REPAIRS
7.1 LANDLORD'S OBLIGATIONS. Landlord shall maintain, repair and replace
as necessary the structural portions of the Building, including the foundation,
floor/ceiling slabs, roof structure, exterior walls, columns, beams and shafts
(including elevator shafts) (collectively, "BUILDING STRUCTURE") at its sole
cost and expense. Landlord shall also maintain, repair and replace as necessary
the parking areas, sidewalks and access roads (including snow and ice removal),
landscaping, fountains, water falls, exterior Project signage, exterior glass
and mullions, stairs and stairwells, elevator cabs and equipment, plazas, art
work, sculptures, men's and women's washrooms, Building mechanical, electrical
and telephone closets, and all common and public areas and the Building
security, mechanical, electrical, life safety, plumbing, sprinkler systems and
HVAC systems (collectively, the "BUILDING SYSTEMS") and all other Common Areas
within the Project, and the cost of such maintenance and repair (or the
amortized portion of the capital expenses of such maintenance and repairs, as
applicable), shall be included in Operating Expenses. Landlord shall undertake
reasonable efforts to perform all maintenance, repairs and replacements pursuant
to this SECTION 7.1 promptly after Landlord learns of the need for such
maintenance, repairs and replacements, but in any event within thirty (30) days
after Tenant provides written notice to Landlord of the need for such
maintenance, repairs and replacements; provided, however, that in cases of
emergency (i.e., circumstances which, if not addressed promptly, could result in
material damage to persons and property), Landlord shall perform any
maintenance, repairs and replacements as soon as reasonably practicable after it
learns of the need for such maintenance, repairs and replacements. In the event
that any maintenance, repair and/or replacement is required of the air handlers
and chillers servicing the Lab Areas, and Tenant expects that Tenant will suffer
monetary loss or damages if such work is not completed immediately, Tenant shall
give notice of such situation to Landlord and Landlord's property manager,
clearly stating the emergency nature of the situation, and if Landlord is unable
to proceed to effect such maintenance, repairs or replacements immediately,
Tenant may do so, and the cost of such work shall be allocated and paid for as
provided in the next paragraph of this Section 7.1.
Notwithstanding anything herein to the contrary, Tenant shall reimburse
Landlord as Additional Rent, within thirty (30) days after receipt of Landlord's
invoice, for all costs paid to third parties associated with the repair,
maintenance and replacement of the air handlers and chillers which service the
Lab Areas (as defined in SECTION 6.2, above) of the Premises and such costs
shall thereafter not be included in the calculation of Operating Expenses.
Notwithstanding the foregoing, with respect to all costs for replacements of the
air handlers and chillers (or components thereof) which service the Lab Areas
that are capital in nature under generally accepted accounting principles, at
Tenant's option, to be exercised within thirty days after receipt
22
of Landlord's first invoice for such costs, in lieu of reimbursing Landlord
within thirty days, such costs shall be amortized (with interest at a twelve
percent (12%) per annum) over the lesser of (i) the remaining Term of the Lease,
or (ii) the useful life of the item being replaced, and Tenant shall pay
Landlord, as Additional Rent, on a monthly basis, the amortized portion and
interest applicable thereto.
7.2 TENANT'S OBLIGATIONS. Notwithstanding anything in this Lease to the
contrary, Tenant shall be required to repair any damage to the Building
Structure and/or the Building Systems to the extent caused due to Tenant's use
of the Premises for other than its Permitted Use, unless and to the extent such
damage is covered by insurance carried (or required to be carried) by Landlord
pursuant to ARTICLE 10 and to which the waiver of subrogation is applicable.
Tenant shall, at Tenant's own expense, pursuant to the TCCs of this Lease,
including without limitation ARTICLE 8 hereof, maintain all Alterations,
Furniture and other personal property of Tenant within the Premises in good
order, repair and condition at all times during the Lease Term. Tenant hereby
waives any and all rights to terminate this Lease, complete repairs, and off-set
the rent as may be provided under the laws of the Commonwealth of
Massachusetts,
now or hereafter in effect (provided, however, nothing in this sentence is
intended to waive any contractual rights Tenant may have under the specific
terms and conditions of this Lease).
ARTICLE 8
ADDITIONS AND ALTERATIONS
8.1 LANDLORD'S CONSENT TO ALTERATIONS. Tenant may not make any
improvements, alterations, additions or changes to the Premises or any
mechanical, plumbing or HVAC facilities or systems pertaining to the Premises
which affect the Building Structure, Building Systems or exterior appearance of
the Building (collectively, the "ALTERATIONS") without first procuring the prior
written consent of Landlord to such Alterations, which consent shall be
requested by Tenant not less than twenty (20) days prior to the commencement
thereof, and which consent shall not be unreasonably withheld, conditioned or
delayed by Landlord, provided it shall be deemed reasonable for Landlord to
withhold its consent to any Alteration which materially or adversely affects the
Building Structure, Building Systems or exterior appearance of the Building.
Tenant shall use Landlord's mechanical, electrical and plumbing engineer(s) for
all mechanical, electrical and plumbing design(s) for the Premises, so long as
such fees are reasonable and consistent with market rates and so long as
Landlord does not charge Tenant an administrative fee as part of the work orders
for such contractors. Tenant shall not need the consent of Landlord for
decorative changes to the Premises costing less than $10,000. Tenant agrees that
Landlord has no obligation to upgrade the electrical service for the Building to
meet Tenant's needs, and Tenant agrees that Tenant shall be responsible for the
distribution or redistribution of electrical service from the subpanels on the
fifth and sixth floors of the Building in connection with the improvements to
the Premises to be performed by Tenant. Tenant shall provide Landlord with
electric load calculations in connection with the construction of any
Alterations, and Tenant shall not exceed the total amperage available from the
subpanels located on the fifth and sixth floors of the Building. Notwithstanding
the foregoing, subject to Landlord's review and approval of the proposed plans
and specifications (which approval shall not be unreasonably withheld,
conditioned or delayed), Landlord shall permit Tenant, at Tenant's sole cost and
expenses, to increase electrical service to the Building or otherwise to modify
the
23
electrical system in the Building to the extent necessary to provide electrical
service required for the Lab Areas (including, without limitation, the "freezer
farm"), provided that such modifications do not reduce the power available or
interrupt the power service to the other tenants of the Building, and/or to the
Common Areas of the Building. Tenant shall not exceed the load bearing capacity
of the floors within the Building as currently designed, and any modifications
required for Tenant's use shall be at Tenant's sole cost and expense, and
subject to Landlord's review and approval in accordance with this Lease.
8.2 MANNER OF CONSTRUCTION. Tenant shall utilize only competent
contractors, subcontractors, materials, mechanics and materialmen reasonably
approved by Landlord for the construction of any Alterations, which approval
shall not be unreasonably withheld, conditioned or delayed; provided, however,
that Tenant shall be entitled to use its employees to make Alterations which do
not affect the mechanical or structural portions of the Premises or the Building
Structure so long as Tenant complies with all other provisions of this ARTICLE
8. Upon Landlord's request (unless Landlord waived, at the time of Landlord's
approval of any Alterations pursuant to the provisions of SECTION 8.5, below,
its right to make such request), Tenant shall, at Tenant's expense, remove such
Alterations upon the expiration or any early termination of the Lease Term. If
such Alterations will involve the use of or disturb Hazardous Materials or
substances existing in the Premises, Tenant shall comply with Landlord's rules
and regulations concerning, and all Applicable Laws pertaining to, Hazardous
Materials or substances with respect to such Alterations. Tenant shall construct
such Alterations and perform such repairs in a good and workmanlike manner, in
conformance with any and all applicable federal, commonwealth, county or
municipal laws, rules and regulations and pursuant to a valid building permit,
issued by the City of Marlborough, and in conformance with Landlord's
construction rules and regulations, if any, provided to Tenant in writing prior
to construction of such Alterations. In the event Tenant performs any
Alterations in the Premises which require or give rise to governmentally
required changes to the "Base Building," as that term is defined below, then
Landlord shall, at Tenant's expense, make such changes to the Base Building. The
"BASE BUILDING" shall include the Building Structure, and the public restrooms
and the systems and equipment located in the internal core of the Building on
the floor or floors on which the Premises are located. In performing the work of
any such Alterations, Tenant shall have the work performed in such manner so as
not to obstruct access to the Project or any portion thereof, by any other
tenant of the Project, and so as not to obstruct the business of Landlord or
other tenants in the Project. Tenant shall not use (and promptly after notice
from Landlord shall cease using) contractors, services, workmen, labor,
materials or equipment that, in Landlord's reasonable judgment, would disturb
labor harmony with the workforce or trades engaged in performing other work,
labor or services in or about the Building or the Common Areas. In addition to
Tenant's obligations under ARTICLE 9 of this Lease, upon completion of any
Alterations which affect the Building Systems and Building Structures, Tenant
agrees to cause such notices as may be necessary to evidence completion of any
work undertaken by Tenant to be recorded in the office of the Recorder of the
County of Middlesex in accordance with the laws of the Commonwealth of
Massachusetts or any successor statute, and Tenant shall deliver to the Project
management office a reproducible copy of the "as built" drawings of the
Alterations as well as all permits, approvals and other documents issued by any
governmental agency in connection with the Alterations.
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8.3 PAYMENT FOR IMPROVEMENTS. If payment is made directly to
contractors, Tenant shall comply with all Applicable Laws relating to final lien
releases and waivers in connection with Tenant's payment for work to
contractors. Whether or not Tenant orders any work directly from Landlord,
Tenant shall reimburse Landlord for Landlord's reasonable out-of-pocket costs
and expenses reasonably incurred in connection with Landlord's review of any
Alterations.
8.4 CONSTRUCTION INSURANCE. In addition to the requirements of ARTICLE
10 of this Lease, in the event that Tenant makes any Alterations, prior to the
commencement of such Alterations, Tenant shall provide Landlord with evidence
that Tenant carries "BUILDER'S ALL RISK" insurance in an amount reasonably
related to the value of such Alterations, it being understood and agreed that
all of such Alterations shall be insured by Tenant pursuant to ARTICLE 10 of
this Lease immediately upon completion thereof.
8.5 LANDLORD'S PROPERTY. All Alterations, improvements, fixtures,
equipment and/or appurtenances other than Tenant's trade fixtures and equipment
(which shall expressly include all of Tenant's laboratory equipment, testing
devices, and ancillary equipment, whether affixed to the Premises or not) which
may be installed or placed in or about the Premises, from time to time, shall be
and become the property of Landlord upon the expiration or earlier termination
of this Lease, subject to the requirements of SECTION 8.2 and Landlord's right
to require Tenant to remove such items as provided in this SECTION 8.5. Under no
circumstances shall Tenant be required to remove standard office finishes from
the Premises (i.e. those office materials and fixtures that are commercially
reasonable, appropriate and common in Comparable Buildings). Upon the expiration
or earlier termination of this Lease, Tenant may remove any equipment or
fixtures installed by Tenant, provided Tenant repairs any damage to the Premises
and Building caused by such removal and returns the affected portion of the
Premises to Building Standard condition. Furthermore, Landlord may, by written
notice to Tenant prior to the end of the Lease Term, or given following any
earlier termination of this Lease, require Tenant, at Tenant's expense, to
remove any Alterations in the Premises and to repair any damage to the Premises
and Building caused by such removal (reasonable wear and tear excepted) and
return the affected portion of the Premises to Building Standard condition;
provided, however, if, in connection with its request for Landlord's approval
for particular Alterations, (1) Tenant requests Landlord's decision with regard
to the removal of such Alterations, and (2) Landlord thereafter agrees in
writing to waive the removal requirement when approving such Alterations, then
Tenant shall not be required to so remove such Alterations; provided further,
however, that if Tenant requests such a determination from Landlord and
Landlord, in its approval of any Alterations, fails to address the removal
requirement with regard to such Alterations, Landlord shall be deemed to have
agreed to waive the removal requirement with regard to such Alterations. If
Tenant fails to complete such removal and/or to repair any damage caused by the
removal of any Alterations in the Premises and return the affected portion of
the Premises to Building Standard condition, then at Landlord's option, either
(A) Tenant shall be deemed to be holding over in the Premises and Rent shall
continue to accrue in accordance with the TCCs of ARTICLE 16, below, until such
work shall be completed, or (B) Landlord may do so and may charge the cost
thereof to Tenant, and Tenant shall reimburse Landlord for such costs within ten
(10) days after receipt of Landlord's invoice therefore. Tenant hereby protects,
defends, indemnifies and holds Landlord harmless from any liability, cost,
obligation, expense or claim of lien in any manner relating to the Tenant's
installation, placement, removal or financing of any such Alterations,
improvements, fixtures and/or equipment in, on or about the Premises, which
obligations of Tenant shall survive
25
the expiration or earlier termination of this Lease for one (1) year following
such expiration or earlier termination. At all times during the Term of this
Lease, Tenant shall be entitled to remove, and Landlord shall have no interest
in, Tenant's trade fixtures and equipment.
ARTICLE 9
COVENANT AGAINST LIENS
Tenant shall keep the Project and Premises free from any liens or
encumbrances arising out of the work performed, materials furnished or
obligations incurred by or on behalf of Tenant, and shall protect, defend,
indemnify and hold Landlord harmless from and against any claims, liabilities,
judgments or costs (including, without limitation, reasonable attorneys' fees
and costs) arising out of same or in connection therewith. Tenant shall give
Landlord notice at least ten (10) business days prior to the commencement of any
such work on the Premises (or such additional time as may be necessary under
Applicable Laws) to afford Landlord the opportunity of posting and recording
appropriate notices of non-responsibility. Tenant shall remove any such lien or
encumbrance by bond or otherwise within ten (10) days after notice by Landlord,
and if Tenant shall fail to do so, Landlord may pay the amount necessary to
remove such lien or encumbrance, without being responsible for investigating the
validity thereof. The amount so paid shall be deemed Additional Rent under this
Lease payable upon demand, without limitation as to other remedies available to
Landlord under this Lease. Nothing contained in this Lease shall authorize
Tenant to do any act which shall subject Landlord's title to the Building or
Premises to any liens or encumbrances whether claimed by operation of law or
express or implied contract.
ARTICLE 10
INSURANCE
10.1 INDEMNIFICATION AND WAIVER. Except as otherwise expressly provided
herein, Tenant hereby assumes all risk of damage to property or injury to
persons in, upon or about the Premises from any cause whatsoever and agrees that
Landlord, its partners, subpartners and their respective officers, agents,
servants, employees, and independent contractors (collectively, "LANDLORD
PARTIES") shall not be liable for, and are hereby released from any
responsibility for, any damage either to person or property or resulting from
the loss of use thereof, which damage is sustained by Tenant or by other persons
claiming through Tenant, except to the extent such damage results from the
negligent acts or omissions or willful misconduct of
26
Landlord, or from Landlord's failure to perform its obligations under this
Lease, and in such event, only to the extent not covered by Tenant's insurance
required to be carried hereunder. Tenant shall indemnify, defend, protect, and
hold harmless the Landlord Parties from any and all loss, cost, damage, expense
and liability (including without limitation court costs and reasonable
attorneys' fees) incurred in connection with or arising from any cause in the
Premises, and to the extent arising from the negligent act or omission of Tenant
or of any person claiming by, through or under Tenant, or of the contractors,
agents, servants, employees, invitees, guests or licensees of Tenant or any such
person, in, on or about the Project or any breach of the TCCs of this Lease,
either prior to, during, or after the expiration or earlier termination of the
Lease Term, except to the extent such damage results from the negligent acts or
omissions or willful misconduct of Landlord, or from Landlord's failure to
perform its obligations under this Lease, and in such event, only to the extent
not covered by Landlord's insurance required to be carried hereunder. Landlord
shall indemnify, defend, protect, and hold harmless Tenant and its officers,
agents, employees and contractors from any and all loss, cost damage, expense
and liability (including without limitation court costs and reasonable
attorneys' fees) to the extent arising from the negligent acts or omissions or
willful misconduct of Landlord, its agents, employees and contractors in, on or
about the Project, except to the extent such damage results from the negligent
acts or omissions or willful misconduct of Tenant, its agents, employees and
contractors or from Tenant's failure to perform its obligations under this
Lease, but only to the extent covered by Landlord's insurance required to be
carried hereunder. Further, Landlord's and Tenant's agreements to indemnify
pursuant to this SECTION 10.1 are not intended and shall not relieve any
insurance carrier of its obligations, to the extent such policies cover the
matters subject to the foregoing indemnification obligations; nor shall they
supersede any inconsistent agreement of the parties set forth in any other
provision of this Lease. The provisions of this SECTION 10.1 shall survive the
expiration or sooner termination of this Lease with respect to any claims or
liability arising in connection with any event occurring prior to such
expiration or termination.
10.2 TENANT'S COMPLIANCE WITH LANDLORD'S FIRE AND CASUALTY INSURANCE.
Tenant shall, at Tenant's expense, comply with all insurance company
requirements pertaining to the use of the Premises to the extent such
requirements are provided by Landlord to Tenant in writing. If Tenant's conduct
or use of the Premises causes any increase in the premium for such insurance
policies then Tenant shall reimburse Landlord for any such increase within
fifteen (15) business days after receipt of Landlord's written demand; provided,
however, that Landlord shall provide reasonably sufficient documentation or
other evidence to Tenant that its use and occupancy of the Premises caused such
increase in connection with any demand for payment. Landlord represents that as
of the date of this Lease Landlord has reviewed with its insurance carrier
Tenant's Permitted Use under this Lease and Landlord has been advised that the
Permitted Use does not currently subject Landlord to increased insurance
premiums. Tenant, at Tenant's expense, shall comply with all rules, orders,
regulations or requirements of the American Insurance Association (formerly the
National Board of Fire Underwriters) and with any similar body.
10.3 TENANT'S INSURANCE. Tenant shall maintain the following coverages
in the following amounts.
10.3.1 Commercial General Liability Insurance covering the
insured against claims of bodily injury, personal injury and property damage
(including loss of use thereof) arising out of Tenant's operations, and
contractual liabilities (covering the performance by Tenant of its indemnity
agreements) including the equivalent of the coverage provided by a Broad Form
endorsement covering the insuring provisions of this Lease and the performance
by Tenant of the indemnity agreements set forth in SECTION 10.1 of this Lease,
for limits of liability not less than:
Bodily Injury and $4,000,000 each occurrence
Property Damage Liability $4,000,000 annual aggregate
27
Personal Injury Liability $4,000,000 each occurrence
$4,000,000 annual aggregate
10.3.2 Physical Damage Insurance covering any Alterations made
to the Premises in accordance with ARTICLE 8 of this Lease and property
insurance covering the Furniture and Tenant's personal property, trade fixtures
and equipment in the Premises at 100% replacement cost. Such insurance shall be
written on an "all risks" of physical loss or damage basis, for the full
replacement cost value (subject to reasonable deductible amounts) new without
deduction for depreciation of the covered items and in amounts that meet any
co-insurance clauses of the policies of insurance and shall include coverage for
damage or other loss caused by fire or other peril including, but not limited
to, vandalism and malicious mischief, theft, water damage of any type, including
sprinkler leakage, bursting or stoppage of pipes, and explosion.
10.3.3 Worker's Compensation and Employer's Liability or other
similar insurance pursuant to all applicable commonwealth, state and local
statutes and regulations.
10.4 FORM OF POLICIES. The minimum limits of policies of insurance
required of Tenant under this Lease shall in no event limit the liability of
Tenant under this Lease. Tenant's liability insurance shall (i) name Landlord,
Landlord's lender and Landlord's managing agent, if any, as an additional
insured; (ii) specifically cover the liability assumed by Tenant under this
Lease, including, but not limited to, Tenant's obligations under SECTION 10.1 of
this Lease; (iii) be issued by an insurance company having a rating of not less
than A-VII in Best's Insurance Guide and licensed to do business in the
Commonwealth of
Massachusetts; (iv) be primary insurance as to all claims
thereunder and provide that any insurance carried by Landlord is excess and is
non-contributing with any insurance requirement of Tenant; and (v) provide that
said insurance shall not be canceled or coverage reduced unless ten (10) days'
prior written notice shall have been given to Landlord. Tenant shall deliver
evidence of such coverage to Landlord on or before the Lease Commencement Date
and at the time of any renewal thereof. In the event Tenant shall fail to
procure such insurance, or to deliver such evidence, including a certificate of
insurance, Landlord may, at its option, if Tenant fails to provide evidence of
such insurance within five (5) business days after notice from Landlord, procure
such policies for the account of Tenant, and the cost thereof shall be paid to
Landlord within five (5) business days after delivery to Tenant of bills
therefor.
10.5 SUBROGATION. Landlord and Tenant shall cause their insurers to
waive, and Landlord and Tenant hereby expressly waive, all rights of subrogation
in their respective insurance policies during the Lease Term.
10.6 LANDLORD'S INSURANCE. Landlord shall insure the Building (including
the Building Structure and Building Systems) and the Project during the Lease
Term against loss or damage due to fire and other casualties covered within the
classification of fire and extended coverage at the full replacement cost of the
Buildings and other improvements which constitute the Project (excluding
footings and foundations). Such coverage shall be in such amounts, from such
companies, and on such other terms and conditions, as Landlord may from time to
time reasonably determine. Additionally, at the sole option of Landlord, such
insurance coverage may include the risk of flood damage and additional hazards,
a rental loss endorsement and one
28
or more loss payee endorsements in favor of the holders of any mortgages or
deeds of trust encumbering the interest of Landlord in the Building or the
ground or underlying lessors of the Building, or any portion thereof. Landlord
shall maintain a Commercial General Liability Insurance policy covering the
insured against claims of bodily injury and personal injury, for limits of
liability not initially less than $5,000,000 each occurrence and $5,000,000
annual aggregate for each of bodily injury and personal injury.
ARTICLE 11
DAMAGE AND DESTRUCTION
11.1 REPAIR OF DAMAGE BY LANDLORD. Tenant shall promptly notify Landlord
of any damage to, or affecting, the Premises resulting from fire or any other
casualty. If the Premises, the Building or any Common Areas serving or providing
access to the Premises shall be damaged by fire or other casualty, Landlord
shall promptly and diligently, subject to reasonable delays for insurance
adjustment or other delays due to Force Majeure, and subject to all other TCCs
of this ARTICLE 11, restore the Premises, the Building and such Common Areas.
Such restoration shall be to substantially the same condition as existed prior
to the casualty, except for modifications required by zoning and building codes
and other laws, provided that access to the Premises and any common restrooms
serving the Premises and Tenant's use of the Premises shall not be materially
impaired. Upon the occurrence of any damage to the Premises, upon notice (the
"LANDLORD REPAIR NOTICE") to Tenant from Landlord, Tenant shall assign to
Landlord (or to any party designated by Landlord) all insurance proceeds payable
to Tenant under Tenant's insurance required under SECTION 10.3.2 of this Lease
to the extent of the value of the Furniture, and Landlord shall replace the
Furniture to the extent of such insurance proceeds or, if this Lease is
terminated as a result of such casualty, Landlord shall retain such proceeds.
Upon receipt of any Landlord Repair Notice, and provided this Lease has not
terminated as provided in this ARTICLE 11, Tenant shall proceed to restore and
repair any injury or damage to the Alterations, trade fixtures and equipment (to
the extent the Building Structure and the Premises are in commercially
acceptable condition to proceed with restoration of Alterations, trade fixtures
and equipment), which have been completed or installed by or on behalf of
Tenant, in accordance with ARTICLE 8 of this Lease, in the Premises and shall
return such Alterations, trade fixtures and equipment to substantially the same
condition as existed prior to the casualty, except for modifications required by
zoning and building codes and other Applicable Laws. Following delivery of a
Landlord Repair Notice, prior to the commencement of construction, Tenant shall
submit to Landlord, for Landlord's review and approval, all plans,
specifications and working drawings relating thereto, and Landlord shall review
and approve such plans and specifications and Tenant's contractors to be used
for such work pursuant to the provisions of ARTICLE 8. Landlord shall not be
liable for any inconvenience or annoyance to Tenant or its visitors, or injury
to Tenant's business resulting in any way from such damage or the repair
thereof; provided however, that if such fire or other casualty shall have
damaged the Premises or Common Areas necessary to Tenant's occupancy, Landlord
shall allow Tenant a proportionate abatement of Rent (and, to the extent
applicable, an adjustment to Tenant's Share), to the extent Tenant is unable to
operate its business in the Premises (measured by the proportion of square feet
of the Premises in which Tenant is unable to operate as compared to the total
size of the Premises, and continuing until such time as such areas and access
thereto are restored substantially to their condition prior to the casualty),
regardless of whether Landlord is
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reimbursed from the proceeds of rental interruption insurance purchased or
required to be purchased by Landlord as part of Operating Expenses, during the
time and to the extent the Premises are unfit for occupancy for the purposes
permitted under this Lease, and not occupied by Tenant as a result thereof;
provided, further, however, that if the damage or destruction is due to the
negligence or intentional misconduct of Tenant, Tenant shall be responsible for
any reasonable, applicable insurance deductible (which shall be payable to
Landlord upon demand).
11.2 LANDLORD'S OPTION TO REPAIR. Notwithstanding the TCCs of SECTION
11.1 of this Lease, Landlord may elect not to rebuild and/or restore the
Premises, Building and/or Project, and instead terminate this Lease (or the
applicable portion thereof), by notifying Tenant in writing of such termination
within sixty (60) days after the date of discovery of the damage, such notice to
include a termination date giving Tenant sixty (60) days to vacate the Premises,
but Landlord may so elect only if the Premises, Building or Project shall be
damaged by fire or other casualty or cause, if one or more of the following
conditions is present: (i) in Landlord's reasonable judgment, repairs cannot
reasonably be completed within nine (9) months after the date of discovery of
the damage (when such repairs are made without the payment of overtime or other
premiums); (ii) the damage is not fully covered by Landlord's insurance policies
required under this Lease; (iii) the damage occurs during the last twelve (12)
months of the Lease Term; or (iv) Landlord's mortgagee does not permit adequate
insurance proceeds to be applied to the rebuilding or repair of the Building or
Project. Within sixty (60) days after the date of discovery of the damage, if
Landlord does not elect to terminate this Lease pursuant to Landlord's
termination right as provided above, Landlord shall give Tenant written notice
of the estimated time required to repair the Premises, Building and/or Project
(the "Repair Estimate"). If the estimated time to repair the Premises exceeds
twelve (12) months (measured from the date of discovery of the damage), then
Tenant shall have the right to terminate this Lease upon written notice given
within thirty (30) days after receipt of Landlord's Repair Estimate, time being
of the essence. If neither Landlord nor Tenant elects to terminate this Lease
pursuant to the termination right as provided above, and if the repairs to be
made by Landlord are not actually completed within twelve (12) months of the
date of discovery of the damage, as extended for Force Majeure delays and/or
delays in insurance adjustment as reasonably demonstrated by Landlord to Tenant,
Tenant shall have the right to terminate this Lease by providing written notice
to Landlord (the "DAMAGE TERMINATION NOTICE"), such termination to be effective
five (5) business days after Landlord's receipt of the Damage Termination Notice
(the "DAMAGE TERMINATION DATE"); provided, however, that Landlord shall have the
right to suspend the occurrence of the Damage Termination Date for a period of
thirty (30) days after the Damage Termination Date by delivering to Tenant, on
or before the Damage Termination Date, a certificate of Landlord's contractor
responsible for the repair of the damage certifying that it is such contractor's
good faith judgment that the repairs to be made by Landlord shall be completed
within thirty (30) days after the Damage Termination Date. If such repairs shall
be completed prior to the expiration of such thirty-day period, then the Damage
Termination Notice shall be of no force or effect, but if such repairs shall not
be completed within such thirty (30) day period, then this Lease shall terminate
upon the expiration of such thirty (30) day period.
11.3 WAIVER OF STATUTORY PROVISIONS. The provisions of this Lease,
including this ARTICLE 11, constitute an express agreement between Landlord and
Tenant with respect to any and all damage to, or destruction of, all or any part
of the Premises, the Building or the Project, and any statute or regulation of
the Commonwealth of
Massachusetts, with respect to any rights
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or obligations concerning damage or destruction in the absence of an express
agreement between the parties, and any other statute or regulation, now or
hereafter in effect, shall have no application to this Lease or any damage or
destruction to all or any part of the Premises, the Building or the Project.
ARTICLE 12
NON-WAIVER
No provision of this Lease shall be deemed waived by either party hereto
unless expressly waived in a writing signed thereby. The waiver by either party
hereto of any breach of any term, covenant or condition herein contained shall
not be deemed to be a waiver of any subsequent breach of same or any other term,
covenant or condition herein contained. The subsequent acceptance of Rent
hereunder by Landlord shall not be deemed to be a waiver of any preceding breach
by Tenant of any term, covenant or condition of this Lease, other than the
failure of Tenant to pay the particular Rent so accepted, regardless of
Landlord's knowledge of such preceding breach at the time of acceptance of such
Rent. No acceptance of a lesser amount than the Rent herein stipulated shall be
deemed a waiver of Landlord's right to receive the full amount due, nor shall
any endorsement or statement on any check or payment or any letter accompanying
such check or payment be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the full amount due. No receipt of monies by Landlord from Tenant after the
termination of this Lease shall in any way alter the length of the Lease Term or
of Tenant's right of possession hereunder, or after the giving of any notice
shall reinstate, continue or extend the Lease Term or affect any notice given
Tenant prior to the receipt of such monies, it being agreed that after the
service of notice or the commencement of a suit, or after final judgment for
possession of the Premises, Landlord may receive and collect any Rent due, and
the payment of said Rent shall not waive or affect said notice, suit or
judgment.
ARTICLE 13
CONDEMNATION
13.1 CONDEMNATION. If the whole or any part of the Premises, Building or
Project shall be taken by power of eminent domain or condemned by any competent
authority for any public or quasi-public use or purpose, or if any adjacent
property or street shall be so taken or condemned, or reconfigured or vacated by
such authority in such manner as to require the use, reconstruction or
remodeling of any part of the Premises, Building or Project, and if as a result
thereof Tenant cannot conduct its business operations in substantially the same
manner such business operations were conducted prior to such taking while still
retaining substantially the same material rights and benefits it bargained to
receive under this Lease, or if Landlord shall grant a deed or other instrument
in lieu of such taking by eminent domain or condemnation as a result thereof,
Landlord and Tenant shall each have the option to terminate this Lease on ninety
(90) days notice (or such shorter amount of time as is reasonable based on when
Landlord and Tenant learned of the effective date of the taking) to the other
party effective as of the date possession is required to be surrendered to the
authority. Subject to SECTION 13.2 below, Tenant shall not because of such
taking assert any claim against Landlord or the authority for any
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compensation because of such taking and Landlord shall be entitled to the entire
award or payment in connection therewith, except that Tenant shall have the
right to file any separate claim available to Tenant for any taking of Tenant's
personal property and fixtures belonging to Tenant and removable by Tenant upon
expiration of the Lease Term pursuant to the TCCs of this Lease, and for moving
expenses, so long as such claims do not diminish the award available to Landlord
or its ground lessor, if any, with respect to the Building or Project, or its
mortgagee, and such claim is payable separately to Tenant. All Rent shall be
apportioned as of the date of such termination. If any part of the Premises
shall be taken, and this Lease shall not be so terminated, the Rent shall be
proportionately abated. Notwithstanding anything to the contrary contained in
this ARTICLE 13, in the event of a temporary taking of all or any portion of the
Premises for a period of sixty (60) days or less, then this Lease shall not
terminate but the Base Rent and the Additional Rent shall be abated for the
period of such taking in proportion to the ratio that the amount of rentable
square feet of the Premises taken bears to the total rentable square feet of the
Premises. Subject to SECTION 13.2 below, Landlord shall be entitled to receive
the entire award made in connection with any such temporary taking. Landlord and
Tenant hereby waive the provisions of any statutes or other laws relating to the
termination of leases in the event of condemnation, and agrees that the rights
and obligations of the parties in such event shall be governed by the terms of
this Lease.
13.2 TENANT'S RIGHT TO AWARD. Subject to the provisions of SECTION 13.1
above, Tenant shall have the right to claim and recover (i) the fair market
value of the Alterations to the extent paid for solely by Tenant, (ii) any sum
awarded to Tenant for damages to or loss of Tenant's business, and (iii) such
compensation as may be separately awarded or recoverable by Tenant on account of
any and all costs or losses related to removing Tenant's merchandise, furniture,
fixtures, leasehold improvements, and equipment to a new location.
ARTICLE 14
ASSIGNMENT AND SUBLETTING
14.1 TRANSFERS. Tenant shall not: (A) mortgage, pledge, hypothecate,
encumber, or permit any lien to attach to this Lease or any interest hereunder
without the prior written consent of Landlord, which consent may be withheld in
Landlord's sole discretion; nor (B) without the prior written consent (except as
otherwise provided in SECTION 14.7 below) of Landlord, which consent will not be
unreasonably withheld, conditioned or delayed, assign, or otherwise transfer,
this Lease or any interest hereunder, permit any assignment, or other transfer
of this Lease or any interest hereunder by operation of law, sublet the Premises
or any part thereof, or enter into any license or concession agreements or
otherwise permit the occupancy or use of the Premises or any part thereof by any
persons other than Tenant and its employees and contractors; (all of the
foregoing (in Clauses (A) and (B)) are hereinafter sometimes referred to
collectively as "TRANSFERS" and any person to whom any Transfer is made or
sought to be made is hereinafter sometimes referred to as a "TRANSFEREE"). If
Tenant desires Landlord's consent to any Transfer, Tenant shall notify Landlord
in writing, which notice (the "TRANSFER NOTICE") shall include (i) the proposed
effective date of the Transfer, which shall not be less than twenty (20) days
nor more than ninety (90) days after the date of delivery of the Transfer
Notice, (ii) a description of the portion of the Premises to be transferred (the
"SUBJECT SPACE"), (iii) all of the TCCs of the proposed Transfer and the
consideration therefor, including calculation of the "TRANSFER
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PREMIUM," as that term is defined in SECTION 14.3 below, in connection with such
Transfer, (iv) the name and address of the proposed Transferee, and a copy of
all existing executed and/or proposed documentation pertaining to the proposed
Transfer, including all existing operative documents to be executed to evidence
such Transfer or the agreements incidental or related to such Transfer
(excluding confidential information and documents (other than financial
information required pursuant to subsection (v) below) as determined by Tenant
in its reasonable business judgment), (v) current financial statements of the
proposed Transferee certified by an officer, partner or owner thereof, business
credit and personal references and history of the proposed Transferee and any
other information required by Landlord which will enable Landlord to determine
the financial responsibility, character, and reputation of the proposed
Transferee, nature of such Transferee's business and proposed use of the Subject
Space and (vi) an executed estoppel certificate from Tenant in the form attached
hereto as EXHIBIT E. Any Transfer made without Landlord's prior written consent
shall, at Landlord's option, be null, void and of no effect, and shall, at
Landlord's option, constitute a default by Tenant under this Lease. Whether or
not Landlord consents to any proposed Transfer, Tenant shall, within thirty (30)
days after written request by Landlord, reimburse Landlord for all reasonable
and actual out-of-pocket third-party costs and expenses incurred by Landlord in
connection with its review of a proposed Transfer; provided that such costs and
expenses shall not exceed One Thousand and No/100 Dollars ($1,000.00) for a
Transfer in the ordinary course of business.
14.2 LANDLORD'S CONSENT. Landlord shall not unreasonably withhold,
condition or delay its consent to any proposed Transfer under clause 14.1(B) of
the Subject Space to the Transferee on the terms specified in the Transfer
Notice. Without limitation as to other reasonable grounds for withholding
consent, the parties hereby agree that it shall be reasonable under this Lease
and under any Applicable Law for Landlord to withhold consent to any proposed
Transfer where one or more of the following apply:
14.2.1 The Transferee is of a character or reputation or engaged
in a business which is not consistent with the quality of the Building or the
Project;
14.2.2 The Transferee intends to use the Subject Space for
purposes which are not permitted under this Lease;
14.2.3 The Transferee is either a governmental agency or
instrumentality thereof;
14.2.4 Tenant is or has been in default beyond any applicable
notice and cure period under this Lease prior to the date of the Transfer;
14.2.5 The Transferee's financial worth and/or financial
stability is insufficient to meet the proposed financial obligations on the date
consent is requested;
14.2.6 The Transferee is an existing tenant of the Project and
Landlord has other comparable space available in the Project;
14.2.7 The parking requirements of the Transferee are in excess
of the proportionate share of parking which would be allocable to the Subject
Space based on the
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rentable square footage of the Subject Space compared to the total rentable
square footage of the Project;
14.2.8 The Transfer would entail any alterations which would
lessen the value of the leasehold improvements in the Premises; or
14.2.9 There is an uncured event of default under the Lease or
Tenant has defaulted in the payment of rent (beyond applicable notice and grace
provisions) more than two times in the prior twelve month period.
If Landlord consents to any Transfer pursuant to the TCCs of this SECTION
14.2 (and does not exercise any recapture rights Landlord may have under SECTION
14.4 of this Lease), Tenant may within one (1) month after Landlord's consent,
but not later than the expiration of said one-month period, enter into such
Transfer of the Premises or portion thereof, upon substantially the same terms
and conditions as are set form in the Transfer Notice furnished by Tenant to
Landlord pursuant to SECTION 14.1 of this Lease, provided that if there are any
material changes in the terms and conditions from those specified in the
Transfer Notice (i) such that Landlord would initially have been entitled to
refuse its consent to such Transfer under this SECTION 14.2, or (ii) which would
cause the proposed Transfer to be materially more favorable to the Transferee
than the terms set forth in Tenant's original Transfer Notice, Tenant shall
again submit the Transfer to Landlord for its approval and other action under
this ARTICLE 14 (including Landlord's right of recapture, if any, under SECTION
14.4 of this Lease). Notwithstanding anything to the contrary in this Lease, if
Tenant or any proposed Transferee claims that Landlord has unreasonably withheld
or delayed its consent under SECTION 14.2 or otherwise has breached or acted
unreasonably under this ARTICLE 14, their remedies shall be restricted to a
declaratory judgment and an injunction for the relief sought, and shall exclude
money damages. Tenant shall indemnify, defend and hold harmless Landlord from
any and all liability, losses, claims, damages, costs, expenses, causes of
action and proceedings involving any third party or parties (including without
limitation Tenant's proposed subtenant or assignee) who claim they were damaged
by Landlord's wrongful withholding or conditioning of Landlord's consent.
14.3 TRANSFER PREMIUM. If Landlord consents to a Transfer, as a
condition thereto which the parties hereby agree is reasonable, Tenant shall pay
to Landlord fifty percent (50%) of any "Transfer Premium," as that term is
defined in this SECTION 14.3, received by Tenant from such Transferee. "TRANSFER
PREMIUM" shall mean all rent, additional rent or other consideration payable by
such Transferee in connection with the Transfer in excess of the Rent and
Additional Rent payable by Tenant under this Lease during the term of the
Transfer on a per rentable square foot basis if less than all of the Premises is
transferred, after deducting all expenses incurred by Tenant (i) in making any
changes, alterations and improvements to the Premises in connection with the
Transfer, (ii) any free base rent provided to the Transferee, (iii) any
brokerage commissions or legal fees paid to third parties in connection with the
Transfer, and (iv) any architectural or engineering expenses incurred by Tenant.
"Transfer Premium" shall also include, but not be limited to, bonus money or
other cash consideration paid by Transferee to Tenant in connection with such
Transfer, and any payment in excess of fair market value for services rendered
by Tenant to Transferee or for assets, fixtures, inventory, equipment, or
furniture transferred by Tenant to Transferee in connection with such Transfer.
In the calculations of the Rent (as it relates to the Transfer Premium
calculated under this SECTION 14.3),
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and the Transferee's Rent, the Rent paid during each annual period for the
Subject Space, and the Transferee's Rent shall be computed after adjusting such
rent to the actual effective rent to be paid, taking into consideration any and
all leasehold concessions granted in connection therewith, including, but not
limited to, any rent credit and tenant improvement allowance. For purposes of
calculating any such effective rent all such concessions shall be amortized on a
straight-line basis over the relevant term.
14.4 LANDLORD'S OPTION AS TO SUBJECT SPACE. In the event that a proposed
Transfer, if consented to, would cause fifty percent (50%) or more of the
Premises to be assigned or subleased to a party other than Original Tenant (that
is,
EXACT Sciences Corporation) and/or its Affiliates, then notwithstanding
anything to the contrary contained in this ARTICLE 14, Landlord shall have the
option, by giving written notice (the "LANDLORD RECAPTURE NOTICE") to Tenant
within thirty (30) days after receipt of any Transfer Notice, to recapture the
Subject Space. Within five (5) business days of its receipt of the Landlord
Recapture Notice, Tenant may, by written notice to Landlord, withdraw its
Transfer Notice (the "TENANT SUBLEASE WITHDRAWAL NOTICE"). Provided Tenant does
not deliver a Tenant Sublease Withdrawal Notice pursuant to the preceding
sentence, the Landlord Recapture Notice shall cancel and terminate this Lease
with respect to the Subject Space as of the date stated in the Transfer Notice
as the effective date of the proposed Transfer until the last day of the term of
the Transfer as set forth in the Transfer Notice (or at Landlord's option, shall
cause the Transfer to be made to Landlord or its agent, in which case the
parties shall execute the Transfer documentation promptly thereafter). In the
event of a recapture by Landlord, if this Lease shall be canceled with respect
to less than the entire Premises, the Rent reserved herein shall be prorated on
the basis of the number of rentable square feet retained by Tenant in proportion
to the number of rentable square feet contained in the Premises, and this Lease
as so amended shall continue thereafter in full force and effect, and upon
request of either party, the parties shall execute written confirmation of the
same. If Landlord declines, or fails to elect in a timely manner to recapture
the Subject Space under this SECTION 14.4, then, provided Landlord has consented
to the proposed Transfer, Tenant shall be entitled to proceed to transfer the
Subject Space to the proposed Transferee, subject to provisions of this ARTICLE
14.
14.5 EFFECT OF TRANSFER. If Landlord consents to a Transfer, (i) the
TCCs of this Lease shall in no way be deemed to have been waived or modified,
(ii) such consent shall not be deemed consent to any further Transfer by either
Tenant or a Transferee, (iii) Tenant shall deliver to Landlord, promptly after
execution, an original executed copy of all documentation pertaining to the
Transfer, and (iv) no Transfer relating to this Lease or agreement entered into
with respect thereto, whether with or without Landlord's consent, shall relieve
Tenant from any liability under this Lease, including, without limitation, in
connection with the Subject Space. Landlord or its authorized representatives
shall have the right at all reasonable times and upon reasonable prior notice to
audit the books, records and papers of Tenant relating to any Transfer, and
shall have the right to make copies thereof. If the Transfer Premium respecting
any Transfer shall be found understated, Tenant shall, within thirty (30) days
after demand, pay the deficiency, and if understated by more than five percent
(5%), Tenant shall pay Landlord's costs of such audit.
14.6 OCCURRENCE OF DEFAULT. Any Transfer hereunder shall be subordinate
and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any
35
Transfer, Landlord shall have the right to: (i) treat such Transfer as cancelled
and repossess the Subject Space by any lawful means, or (ii) require that such
Transferee attorn to and recognize Landlord as its landlord under any such
Transfer. If Tenant shall be in default under this Lease beyond any applicable
notice and cure periods, Landlord is hereby authorized to direct any Transferee
to make all payments under or in connection with the Transfer directly to
Landlord (which Landlord shall apply towards Tenant's obligations under this
Lease) until such default is cured. Such Transferee shall rely on any
representation by Landlord that Tenant is in default hereunder, without any need
for confirmation thereof by Tenant. Upon any assignment, the assignee shall
assume in writing all obligations and covenants of Tenant thereafter to be
performed or observed under this Lease. No collection or acceptance of rent by
Landlord from any Transferee shall be deemed a waiver of any provision of this
ARTICLE 14 or the approval of any Transferee or a release of Tenant from any
obligation under this Lease, whether theretofore or thereafter accruing. In no
event shall Landlord's enforcement of any provision of this Lease against any
Transferee be deemed a waiver of Landlord's right to enforce any term of this
Lease against Tenant or any other person.
14.7 NON-TRANSFERS. Notwithstanding anything to the contrary contained
in this ARTICLE 14, an assignment or subletting of all or a portion of the
Premises to any entity which is controlled directly or indirectly by Tenant, or
which entity controls, directly or indirectly, Tenant (in each such case, an
"AFFILIATE"), or any entity which owns or is owned by an Affiliate, or any
assignment by operation of law or otherwise resulting from any merger or
consolidation of Tenant or to any entity which purchases all or substantially
all the stock or assets of Tenant, shall not be deemed a Transfer under this
ARTICLE 14, provided that at least ten (10) business days prior to such
assignment or sublease (or, if precluded by applicable securities laws from
giving advance notice, within ten (10) business days after such assignment or
sublease, or, if later, promptly after Tenant is legally permitted to inform
Landlord): (i) Tenant notifies Landlord of any such assignment or sublease and
certifies that the applicable Transfer is to an Affiliate; and (iii) such
assignment or sublease is not a subterfuge by Tenant to avoid its obligations
under this Lease. In the event an assignment or sublease to an Affiliate is made
pursuant to the TCCs of this SECTION 14.7, Tenant shall not be relieved of its
obligations under this Lease. "CONTROL," as used in this SECTION 14.7, shall
mean the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a person or entity, whether by
ownership of voting securities, by contract or otherwise.
ARTICLE 15
SURRENDER OF PREMISES; OWNERSHIP AND
REMOVAL OF TRADE FIXTURES
15.1 SURRENDER OF PREMISES. No act or thing done by Landlord or any
agent or employee of Landlord during the Lease Term shall be deemed to
constitute an acceptance by Landlord of a surrender of the Premises unless such
intent is specifically acknowledged in writing by Landlord or its management
company. The delivery of keys to the Premises to Landlord or any agent or
employee of Landlord shall not constitute a surrender of the Premises or effect
a termination of this Lease, whether or not the keys are thereafter retained by
Landlord, and notwithstanding such delivery Tenant shall be entitled to the
return of such keys at any reasonable time upon request until this Lease shall
have been properly terminated. The
36
voluntary or other surrender of this Lease by Tenant, whether accepted by
Landlord or not, or a mutual termination hereof, shall not work a merger, and at
the option of Landlord shall operate as an assignment to Landlord of all
subleases or subtenancies affecting the Premises or terminate any or all such
sublessees or subtenancies.
15.2 REMOVAL OF TENANT PROPERTY BY TENANT. Upon the expiration of the
Lease Term, or upon any earlier termination of this Lease, Tenant shall, subject
to the provisions of this ARTICLE 15, quit and surrender possession of the
Premises to Landlord in as good order and condition as when Tenant took
possession and as thereafter improved by Landlord and/or Tenant, reasonable wear
and tear, damage due to casualty or condemnation, or repairs which are
specifically made the responsibility of Landlord hereunder excepted. Upon such
expiration or termination, Tenant shall, without expense to Landlord, remove or
cause to be removed from the Premises all debris and rubbish, and such items of
furniture (excepting the Furniture), equipment, business and trade fixtures,
free-standing cabinet work, movable partitions and other articles of personal
property owned by Tenant or installed or placed by Tenant at its expense in the
Premises (excluding, however, Tenant's Alterations), and Tenant shall repair at
its own expense all damage to the Premises and Building to the extent resulting
from such removal.
ARTICLE 16
HOLDING OVER
16.1 AFTER EXPIRATION OR EARLIER TERMINATION OF LEASE TERM. If Tenant
holds over after the expiration of the Lease Term or earlier termination
thereof, with or without the express or implied consent of Landlord, such
tenancy shall be from month-to-month only, and shall not, except as set forth
below, constitute a renewal hereof or an extension for any further term, and in
such case Rent shall be payable at a monthly rate equal to the product of (i)
the Rent applicable during the last rental period of the Lease Term under this
Lease, and (ii) one hundred fifty percent (150%). Such month-to-month tenancy
shall be subject to every other applicable TCCs contained herein. For purposes
of this ARTICLE 16, a holding over shall include Tenant's remaining in the
Premises after the expiration or earlier termination of the Lease Term, as
required pursuant to the TCCs of SECTION 8.5, above, to remove any Alterations
located within the Premises and complete Tenant's restoration obligations.
Nothing contained in this ARTICLE 16 shall be construed as consent by Landlord
to any holding over by Tenant, and Landlord expressly reserves the right to
require Tenant to surrender possession of the Premises to Landlord as provided
in this Lease upon the expiration or other termination of this Lease. The
provisions of this ARTICLE 16 shall not be deemed to limit or constitute a
waiver of any other rights or remedies of Landlord provided herein or at law. If
Tenant fails to surrender the Premises upon the termination or expiration of
this Lease, in addition to any other liabilities to Landlord accruing therefrom,
Tenant shall protect, defend, indemnify and hold Landlord harmless from all
loss, costs (including reasonable attorneys' fees) and liability resulting from
such failure, including, without limiting the generality of the foregoing, any
claims made by any succeeding tenant founded upon such failure to surrender and
any lost profits to Landlord resulting therefrom.
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ARTICLE 17
ESTOPPEL CERTIFICATES
Within ten (10) business days following a request in writing by Landlord,
Tenant, shall execute, acknowledge and deliver to Landlord an estoppel
certificate, which, as submitted by Landlord, shall be substantially in the form
of EXHIBIT E or EXHIBIT E-1, attached hereto, or such other substantially
similar form containing such other information as shall be reasonably requested
by any prospective mortgagee or purchaser of the Project, or any portion
thereof, indicating therein any exceptions thereto that may exist at that time.
Any such certificate may be relied upon by any prospective mortgagee or
purchaser of all or any portion of the Project.
ARTICLE 18
SUBORDINATION
This Lease shall be subject and subordinate to all present and future
ground or underlying leases of the Building or Project and to the lien of any
mortgage, trust deed or other encumbrances now or hereafter in force against the
Building or Project or any part thereof, if any, and to all renewals,
extensions, modifications, consolidations and replacements thereof, and to all
advances made or hereafter to be made upon the security of such mortgages or
trust deeds, unless the holders of such mortgages, trust deeds or other
encumbrances (collectively, "LIENHOLDERS"), or the lessors under such ground
lease or underlying leases require in writing that this Lease be superior
thereto. Tenant covenants and agrees in the event any proceedings are brought
for the foreclosure of any such mortgage or deed in lieu thereof (or if any
ground lease is terminated), to attorn (so long as lienholder provides Tenant
with its standard form of Nondisturbance Agreement), without any deductions or
set-offs whatsoever, to the lienholder or purchaser or any successors thereto
upon any such foreclosure sale or deed in lieu thereof (or to the ground
lessor), if so requested to do so by such purchaser or lienholder or ground
lessor, and to recognize such purchaser or lienholder or ground lessor as the
lessor under this Lease. Landlord's interest herein may be assigned as security
at any time to any lienholder. Landlord shall obtain a non-disturbance
agreement(s) between Tenant and all current and future lienholders (the
"NONDISTURBANCE Agreement"). The Nondisturbance Agreement from Landlord's
current mortgagee shall be in the form attached hereto as EXHIBIT I; otherwise,
the form shall be reasonably satisfactory to both Tenant and the applicable
lienholder. Provided that Tenant has received such Nondisturbance Agreement,
Tenant shall, within ten (10) business days of request by Landlord, execute such
further instruments or assurances as Landlord may reasonably deem necessary to
evidence or confirm the subordination or superiority of this Lease to any such
mortgages, trust deeds, ground leases or underlying leases in accordance with
the TCCs of this ARTICLE 18. Tenant waives the provisions of any current or
future statute, rule or law which may give or purport to give Tenant any right
or election to terminate or otherwise adversely affect this Lease and the
obligations of the Tenant hereunder in the event of any foreclosure proceeding
or sale.
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ARTICLE 19
DEFAULTS: REMEDIES
19.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute a default of this Lease by Tenant:
19.1.1 Any failure by Tenant to pay any Rent or any other charge
required to be paid under this Lease, or any part thereof, when due unless such
failure is cured within five (5) business days, provided, however, Landlord
shall be required to give written notice to Tenant of such failure not more than
two times in any twelve month period, after which Tenant shall be in default
without the requirement of notice if Tenant fails to make such payments on or
before the due date; or
19.1.2 Any failure by Tenant to observe or perform any other
provision, covenant or condition of this Lease to be observed or performed by
Tenant where such failure continues for thirty (30) days after written notice
thereof from Landlord to Tenant; provided that if the nature of such default is
such that the same cannot reasonably be cured within a thirty (30) day period,
Tenant shall not be deemed to be in default if it diligently commences such cure
within such period and thereafter diligently proceeds to rectify and cure such
default within sixty (60) days after such written notice; or
19.1.3 (a) The making by Tenant of any general arrangement or
general assignment for the benefit of creditors; (b) Tenant becomes a "debtor"
as defined in 11 U.S.C. ss. 101 or any successor statute thereto (unless, in the
case of a petition filed against Tenant, the same is dismissed within sixty (60)
days); (c), the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where possession is not restored to Tenant within thirty
(30) days; (d) the attachment, execution or other judicial seizure of
substantially all of Tenant's assets located at the Premises or of Tenant's
interest in this Lease, where such seizure is not discharged within sixty (60)
days or the date of any sooner sale of any of such assets; or (e) Tenant shall
become subject to any proceeding in bankruptcy or insolvency.
The notice periods provided herein are in lieu of, and not in addition to,
any notice periods provided by law.
19.2 REMEDIES UPON DEFAULT. Upon the occurrence of any event of default
by Tenant, Landlord shall have, in addition to any other remedies available to
Landlord at law or in equity (all of which remedies shall be distinct, separate
and cumulative), the option to pursue any one or more of the following remedies,
each and all of which shall be cumulative and nonexclusive, without any notice
or demand whatsoever.
19.2.1 Terminate this Lease, in which event Tenant shall
immediately surrender the Premises to Landlord, and if Tenant fails to do so,
Landlord may, without prejudice to any other remedy which it may have for
possession or arrearages in rent, use any lawful means to expel or remove Tenant
and any other person who may be occupying the Premises or any part
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thereof, without being liable for prosecution or any claim or damages therefor;
and Landlord may recover from Tenant the following:
(i) The worth at the time of award of the unpaid rent
which had been earned at the time of such
termination; plus
(ii) The worth at the time of award of the amount by
which the unpaid rent which would have been earned
after termination until the time of award exceeds
the amount of such rental loss that Tenant proves
could have been reasonably avoided; plus
(iii) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Lease
Term after the time of award exceeds the amount of
such rental loss that Tenant proves could have been
reasonably avoided; plus
(iv) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be
permitted from time to time by applicable law.
The term "RENT" as used in this SECTION 19.2 shall be deemed to be and to
mean all sums of every nature required to be paid by Tenant pursuant to the TCCs
of this Lease, whether to Landlord or to others. As used in Paragraphs 19.2.1(i)
and (ii), above, the "worth at the time of award" shall be computed by allowing
interest at the rate set forth in ARTICLE 25 of this Lease through the date of
any judgment against Tenant, but in no case greater than the maximum amount of
such interest permitted by law. As used in Paragraph 19.2.l(iii) above, the
"worth at the time of award" shall be computed by discounting future liabilities
after the date of any judgment against Tenant at the discount rate of the
Federal Reserve Bank of New York.
19.2.2 Maintain Tenant's right to possession in which case this
Lease shall continue in effect whether or not Tenant shall have vacated or
abandoned the Premises. In such event, Landlord shall be entitled to enforce all
of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder. No action by Landlord shall be
deemed a termination of this Lease except written notice by Landlord delivered
to Tenant expressly declaring a termination of this Lease. If Landlord maintains
Tenant's right to possession, Landlord may thereafter elect to terminate this
Lease.
19.2.3 Terminate this Lease and, in addition to any recoveries
Landlord may seek under SECTION 19.2.1, bring an action to reenter and regain
possession of the Premises in the manner provided by the laws of the
Commonwealth of
Massachusetts then in effect.
19.2.4 Pursue any other remedy now or hereafter available to
Landlord under the laws or judicial decisions of the Commonwealth of
Massachusetts.
19.2.5 Landlord shall at all times have the rights and remedies
(which shall be cumulative with each other and cumulative and in addition to
those rights and remedies available under SECTIONS 19.2.1 through 19.2.4, above,
or any law or other provision of this Lease), without prior demand or notice
except as required by applicable law, to seek any
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declaratory, injunctive or other equitable relief, and specifically enforce this
Lease, or restrain or enjoin a violation or breach of any provision hereof;
provided, however, that Landlord shall use commercially reasonable efforts to
mitigate damages.
19.3 SUBLEASES OF TENANT. If Landlord elects to terminate this Lease on
account of any default by Tenant, as set forth in this ARTICLE 19, Landlord
shall have the right to terminate any and all subleases, licenses, concessions
or other consensual arrangements for possession entered into by Tenant and
affecting the Premises or may, in Landlord's sole discretion, succeed to
Tenant's interest in such subleases, licenses, concessions or arrangements. If
Landlord has terminated this Lease and elected to succeed to Tenant's interest
in any such subleases, licenses, concessions or arrangements, Tenant shall, as
of the date of notice by Landlord of such election, have no further right to or
interest in the rent or other consideration receivable thereunder.
19.4 NO RELIEF FROM FORFEITURE AFTER DEFAULT. Tenant waives all rights
of redemption or relief from forfeiture under any present or future laws or
statutes, in the event Tenant is evicted or Landlord otherwise lawfully takes
possession of the Premises by reason of any default by Tenant under this Lease.
19.5 EFFORTS TO RELET. No re-entry or repossession, repairs,
maintenance, changes, alterations and additions, reletting, appointment of a
receiver to protect Landlord's interests hereunder, or any other action or
omission by Landlord shall be construed as an election by Landlord to terminate
this Lease or Tenant's right to possession, or to accept a surrender of the
Premises, nor shall same operate to release Tenant in whole or in part from any
of Tenant's obligations hereunder, unless express written notice of such
intention is sent by Landlord to Tenant. Tenant hereby irrevocably waives any
right otherwise available under any law to redeem or reinstate this Lease.
19.6 LANDLORD DEFAULT. Notwithstanding anything to the contrary set
forth in this Lease, Landlord shall be in default in the performance of any
obligation required to be performed by Landlord pursuant to this Lease if
Landlord fails to perform such obligation within thirty (30) days after the
receipt of written notice from Tenant specifying in detail Landlord's failure to
perform; provided, however, if the nature of Landlord's obligation is such that
more than thirty (30) days are required for its performance, then Landlord shall
not be in default under this Lease if it shall commence such performance within
such thirty (30) day period and thereafter diligently pursues the same to
completion. Tenant shall provide a copy of any notice of default given to
Landlord to Landlord's mortgagee and Landlord's mortgagee shall have the right
to cure any such default on behalf of the Landlord within thirty days after the
receipt of such notice, provided, however, if the nature of Landlord's
obligation is such that more than thirty (30) days are required for its
performance, then Landlord shall not be in default under this Lease if
Landlord's mortgagee shall commence such performance within such thirty (30) day
period and thereafter diligently pursues the same to completion. Upon any such
default by Landlord (following such notice and opportunity to cure) under this
Lease, Tenant may, except as otherwise specifically provided in this Lease to
the contrary, exercise any of its rights provided at law or in equity, provided,
however, except as expressly provided in SECTIONS 11.1, and 13.1, Tenant shall
have no right to offset or withhold the payment of Rent or to terminate this
Lease as the result of Landlord's default.
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ARTICLE 20
COVENANT OF QUIET ENJOYMENT
Landlord covenants that subject to Tenant's performance of its obligations
under this Lease Tenant shall, during the Lease Term, peaceably and quietly
have, hold and enjoy the Premises subject to the terms, covenants, conditions,
provisions and agreements hereof without interference by any persons lawfully
claiming by or through Landlord. The foregoing covenant is in lieu of any other
covenant express or implied.
ARTICLE 21
SECURITY DEPOSIT
21.1 SECURITY DEPOSIT. Upon execution and delivery of this Lease, Tenant
shall provide a security deposit in the amount set forth in the Summary (the
"Security Deposit"), to be held by Landlord without liability for interest
(unless required by State laws) as security for the performance of Tenant's
obligations hereunder. The Security Deposit is not an advance payment of Rent or
a measure of Tenant's liability for damages. Landlord may, from time to time,
without prejudice to any other remedy, use all or a portion of the Security
Deposit to satisfy past due Rent or to cure any uncured default by Tenant. If
Landlord uses all or a portion of the Security Deposit, Tenant shall on demand
restore the Security Deposit to its original amount. Landlord shall return any
unapplied cash portion of the Security Deposit (plus accrued interest, if
Landlord is required by State law to pay interest on the Security Deposit) to
Tenant within forty five (45) days after the later to occur of: (1) the date
Tenant surrenders possession of the Premises in accordance with this Lease; or
(2) the Lease Expiration Date. Unless required by State law, Landlord shall not
be required to keep the Security Deposit separate from its other accounts.
21.2 LETTER OF CREDIT. The Security Deposit may be in the form of an
irrevocable standby letter of credit in favor of Landlord as beneficiary. Upon
Landlord's sole but reasonable determination that an event of default has
occurred under the Lease, Landlord, in addition to all other rights and remedies
provided under the Lease, shall have the right to draw from the letter of credit
and apply the proceeds, or any part thereof, to amounts owing under the Lease;
but Tenant's liability under the Lease shall thereby be discharged but only to
the extent that such draws cover the amount in default and Tenant shall remain
liable for any amounts that such draws shall be insufficient to pay. Landlord is
not required to exhaust any or all rights and remedies available at law or
equity against Tenant before resorting to the letter of credit. In the event the
letter of credit shall not be utilized for any purposes herein permitted, then
such letter of credit shall be returned by Landlord to Tenant within forty-five
(45) days after the expiration of the Term of this Lease. Landlord shall
reimburse Tenant for the annual cost of such letter of credit, by means of a
rent credit, up to, but not to exceed a credit equal to 1% of the required
amount of the letter of credit, per year, which credit shall be pro-rated
annually against Base Rent due for the entire year. The following terms and
conditions shall govern the letter of credit:
(i) The letter of credit shall be in favor of Landlord, or, at
Landlord's election, the Landlord's mortgagee, shall be issued by a commercial
bank reasonably acceptable
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to Landlord and be in the form substantially similar to the form of letter of
credit attached hereto as EXHIBIT H (the form of which shall be deemed
"reasonably acceptable" to Landlord), provided, however, that the final maturity
date, if any, set forth in any letter of credit acceptable to Landlord shall
not, in any event, diminish the obligation of Tenant to maintain such an
irrevocable letter of credit in favor of Landlord through the date set forth in
subsection 21.2 (ii) below. The issuing bank shall have a Standard & Poors
rating of "A" or better (and Tenant shall provide evidence annually that the
issuer continues to meet this standard, and if it does not, Tenant shall replace
the letter or credit within twenty (20) days after Landlord's request with a
letter of credit meeting all the requirements of this Section 21.2, and Tenant's
failure to do so shall be deemed to be an event of default entitling the
beneficiary of the letter of credit to draw thereon), shall comply with all of
the terms and conditions of this Lease and shall otherwise be in form reasonably
acceptable to Landlord. The initial letter of credit shall have an expiration
date not earlier than August 15, 2004.
(ii) The letter of credit or any replacement letter of credit
shall be irrevocable for the term thereof and shall automatically renew on a
year to year basis until a period ending not earlier than forty-five (45) days
after the then current Expiration Date of this Lease without any action
whatsoever on the part of Landlord; provided that the issuing bank shall have
the right not to renew the letter of credit by giving written notice to Landlord
not less than sixty (60) days prior to the expiration of the then current term
of the letter of credit that it does not intend to renew the letter of credit.
Tenant understands that the election by the issuing bank not to renew the letter
of credit shall not, in any event, diminish the obligation of Tenant to maintain
such an irrevocable letter of credit in favor of Landlord through such date.
(iii) Landlord, or the beneficiary of the letter of credit,
shall have the right from time to time to make one or more draws on the letter
of credit at any time that Landlord has determined that an event of default has
occurred under this Lease, or that Landlord is entitled to draw on the letter of
credit pursuant to subsection (vi) below. Funds may be drawn down on the letter
of credit upon presentation to the issuing bank of Landlord's (or Landlord's
then managing agent's) certificate stating as follows:
"The undersigned is entitled to draw on this letter of credit
pursuant to that certain Lease dated January ___, 2003 between
___________________, Landlord, and
EXACT Sciences Corporation,
Tenant, as amended from time to time"
(iv) Tenant acknowledges and agrees (and the letter of credit
shall so state) that the letter of credit shall be honored by the issuing bank
without inquiry as to the truth of the statements set forth in such draw request
and regardless of whether the Tenant disputes the content of such statement.
(v) Landlord shall have the right to transfer the letter of
credit to Landlord's mortgagee, without cost to landlord or its mortgagee. In
the event of a transfer of Landlord's interest in the Premises, Landlord shall
have the right to transfer the letter of credit to the transferee without cost
to Landlord or its transferee, and thereupon the Landlord shall, without any
further agreement between the parties, be released by Tenant from all liability
therefor, and
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it is agreed that the provisions hereof shall apply to every transfer or
assignment of said letter of credit to a new landlord.
(vi) Without limiting the generality of the foregoing, if the
letter of credit expires earlier than forty-five days after the Expiration Date,
or the issuing bank notifies Landlord that it shall not renew the letter of
credit, Landlord shall accept a renewal thereof or substitute letter of credit
(such renewal or substitute letter of credit to be in effect not later than
thirty (30) days prior to the expiration thereof), irrevocable and automatically
renewable as above provided to the date which is forty-five days after the
Expiration Date upon the same terms as the expiring letter of credit or upon
such other terms as may be acceptable to Landlord. However, if (i) the letter of
credit is not timely renewed, or (ii) a substitute letter of credit, complying
with all of the terms and conditions of this Article 21 is not timely received,
the beneficiary may present such letter of credit to the issuing bank, and the
entire sum so obtained shall be paid to the beneficiary, to be held until Tenant
would otherwise be entitled to the return of the letter of credit, subject to
Landlord's right to apply such sums as permitted under this Lease.
21.3 REDUCTION IN SECURITY DEPOSIT. Provided that there is not then
existing an uncured event of default under this Lease, and provided further that
Tenant has not defaulted in the payment of Rent (after notice and opportunity to
cure, if applicable) more than twice during the term of this Lease, the Security
Deposit shall decline by $100,000 per year on the second, third, fourth, fifth
and sixth anniversaries of the Rent Commencement Date. In no event shall the
Security Deposit total less than $500,000.00.
ARTICLE 22
BACK-UP GENERATOR
22.1 EXISTING SYSTEM. Electrical service for the Building is supplied by
National Grid. The existing generator at the Bulding supports life-safety
systems within the Building, and may also be used by other tenants of the
Project. Subject to system capacity, Tenant shall have the right to install two
60-AMP circuits on the UPS system and back-up generator currently existing at
the Building at Tenant's sole cost and expense. Landlord makes no representation
or warranty concerning the said UPS system and/or back-up generator and
SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, INCLUDING
WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTIBILITY OR FITNESS FOR A PARTICULAR
PURPOSE. TENANT'S USE OF, INTENDED USE OF, AND/OR RELIANCE ON SAID UPS SYSTEM
AND/OR BACK-UP GENERATOR SHALL BE AT TENANT'S SOLE RISK. The UPS system and
back-up generator shall be separately metered and Tenant shall be responsible
for a pro-rata share of electrical and maintenance costs and expenses. Landlord
shall have no obligation to maintain, repair, service or replace said UPS System
and/or back-up generator.
22.2 TENANT'S GENERATOR. In the event that Tenant requires its own
emergency back up generator, subject to there being an adequate space in
Landlord's sole judgment where such generator could be located without
diminishing the aesthetics of the Project, and subject to
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Tenant's obtaining all governmental permits and approvals required in connection
therewith at the sole cost and expense of Tenant, and Landlord's approval (which
shall not be unreasonably withheld or delayed) of plans and specifications
indicating, without limitation, sizes, profiles, screening and proposed
location, Tenant shall be permitted to install, use and maintain, at Tenant's
sole cost and expense: (a) one exterior pad mounted emergency back-up generator
to service its needs at the Project consisting of a exterior concrete pad,
together with appurtenant items of equipment including fittings, switches, and
cabling, and such perimeter wooden fencing and landscaping to shield the
generator from view, and acoustical insulation as may be reasonably required by
Landlord (such equipment and appurtenances, collectively, the "Generator"). The
plans submitted to Landlord for approval shall show any access Tenant may
require outside the Premise for vertical and horizontal access paths from
Tenant's Generator to the Building's data closet. Tenant shall be responsible
for providing all additional support required to the structure of the Building.
Tenant shall insure that any penetrations into the Building related to the
Generator are properly sealed. Tenant represents and warrants the Generator is
for the sole purpose of storing diesel fuel and generating emergency power in
the event of a power outage in the Premises. No changes in the specifications or
location of the Generator shall be permitted without the prior written consent
of Landlord, such consent not to be unreasonably withheld, conditioned, or
delayed. Notwithstanding anything to the contrary, the Generator shall be
located on grade, and shall not include any underground storage tank, or piping
other than for electrical transmission.
22.3 Tenant represents and warrants to Landlord that it is (and upon
installation, shall be) the sole owner of the Generator, free and clear of all
liens and encumbrances and that the Project shall not ever be subject to any
liens, claims or encumbrances, including construction/ mechanic's lien claims
arising by reason of the presence of the Generator at the Project, or its
installation, maintenance or removal. Landlord expressly disclaims any interest
or ownership to any portion of the Generator, including any fuel, lubricant or
component.
22.4 Tenant shall use the Generator solely for its business in the
Premises and not for other purposes or by unrelated third parties. Tenant's
installation, use, maintenance and removal of the Generator shall be undertaken
by Tenant in full compliance with all applicable rules, regulations and legal
requirements and shall be subject to all governmental permits and approvals
applicable thereto, including municipal, Town of Marlborough and other
governmental approvals, which Tenant shall secure and maintain at its sole cost
and expense, holding Landlord harmless from any violation thereof.
22.5 Tenant shall be solely responsible for all costs related to the
Generator including, without limitation, the purchase, installation,
maintenance, insurance, and repair of the Generator, the relocation and /or
replacement of any existing landscaping to accommodate placement of the
Generator, and the repair of any damage to the Building and/or the Project
related thereto. The Generator shall be installed and maintained in a good and
workmanlike manner by professional contractors, and in compliance with the
provisions of Article 8. Tenant's installation, operation, maintenance and
removal of the Generator shall be subject to Landlord's inspection and technical
review, the reasonable cost of which shall be borne by Tenant.
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22.6 Tenant agrees to remove the Generator including the concrete pad
and appurtenant electrical conduits, and to restore the area of the Project and
Building affected by the installation, use and operation of the Generator to its
condition prior to such installation prior to the expiration or earlier
termination of the Lease Term and to provide Landlord at least fifteen days
advance written notice of its intent to undertake such removal, and an
opportunity to be present during such removal and restoration. If Tenant fails
to complete such removal and restoration prior to the expiration of the Lease
Term, then Landlord shall have the right (but not the obligation) to complete
such removal and restoration at Tenant's cost and expense, and Tenant shall
reimburse Landlord for such cost and expense upon demand.
22.7 Tenant represents and warrants the Generator and its use and
operation shall comply with all environmental laws, rules and regulations.
Tenant shall provide Landlord with copies of all inspection reports for the
Generator (which shall be conducted at least annually) and copies of any
correspondence, notices or other communications from any governmental authority
concerning the Generator. Subject to the foregoing, Landlord hereby consents to
Tenant's storing diesel fuel in the fuel tank comprising part of the Generator,
such storage being in strict compliance with all applicable laws, rules and
regulations.
22.8 Tenant shall be responsible for and shall maintain any license,
permit or registration requirements relating to the installation or use of the
Generator or the storage of fuel at the Generator in the above ground storage
tank. Tenant shall, at Landlord's request, provide a letter representing that no
leaks have occurred and the same shall be subject to Landlord's inspection. In
connection with any expiration or sooner termination of the Lease, Landlord
shall have the right to cause the Generator to be inspected by an environmental
consultant to determine whether any spills or discharges have occurred which
require remediation. In the event such inspection discloses no need for
remediation, then Landlord shall bear the cost of the inspection. If such
inspection discloses necessary remediation, then Tenant shall bear the cost of
the inspection and shall remediate any identified areas of concern to applicable
standards at its sole cost and expense. In either event, Landlord shall, upon
receipt of the environmental inspection report, deliver a copy of it to Tenant.
22.9 Tenant agrees to indemnify, defend and hold harmless Landlord and
its partners, employees, contractors, agents and representatives from and
against any claims, loss or damage arising or asserted against Landlord,
directly or indirectly, by reason of the installation, presence, use or removal
of the Generator at the Project. Tenant releases Landlord from all liability for
damage to or loss of all or any portion of the Generator or injury to any third
party which may result from the presence, use or removal of the Generator.
Tenant agrees that the liability insurance policy required to be maintained by
Tenant under Article 10 of this Lease shall contain contractual liability and
indemnification insurance coverage, but Tenant's liability shall not be limited
to such coverage.
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ARTICLE 23
SIGNS
Landlord shall provide directory signage for Tenant in the lobby of the
Building. Under no circumstances shall Tenant place a sign on the exterior or
any roof of the Building. Tenant shall also have the right to be included, along
with other tenants, on the monument signage owned by Landlord located near the
entrance to the Project.
ARTICLE 24
COMPLIANCE WITH LAW
Tenant shall not do anything or suffer anything to be done in or about the
Premises or the Project which will in any way conflict with any law, statute,
ordinance, decrees, codes (including without limitation building, zoning and
accessibility codes), common law, judgments, orders, rulings, awards or other
governmental or quasi-governmental rule, regulation or requirement now in force
or which may hereafter be enacted or promulgated including any "Environmental
Laws" as that term is defined in SECTION 29.31 of this Lease ("APPLICABLE
LAWS"). Tenant shall promptly provide to Landlord a copy of any written notice
received by Tenant of violation of any federal, state, county or municipal laws,
regulations, ordinances, orders or directives relating to the use or condition
of the Premises. At its sole cost and expense, Tenant shall promptly comply with
all such governmental measures to the extent that such governmental measures
relate to Tenant's particular use of the Premises or any Alterations located in
the Premises. Should any standard or regulation now or hereafter be imposed on
Landlord or Tenant by a commonwealth, state, federal or local governmental body
charged with the establishment, regulation and enforcement of occupational,
health or safety standards for employers, employees, landlords or tenants, then
Tenant agrees, at its sole cost and expense, to comply promptly with such
standards or regulations to the extent such standards or regulations relate to
Tenant's particular use of the Premises or any Alterations located in the
Premises; provided that Landlord shall comply in all material respects with any
standards or regulations which relate to the Base Building or the Building
Systems, unless such compliance obligations are triggered by the Alterations in
the Premises, in which event such compliance obligations shall be at Tenant's
sole cost and expense; provided further, and notwithstanding the foregoing, that
Tenant shall not be required to make any repair to, modification of, or addition
to the Base Building or the Building Systems except and to the extent required
because of Tenant's particular use of the Premises. The judgment of any court of
competent jurisdiction or the admission by either party hereto in any judicial
action, regardless of whether this other party is a party thereto, that such
party has violated any of said governmental measures, shall be conclusive of
that fact as between Landlord and Tenant. Landlord shall comply with all
Applicable Laws relating to the Project, Base Building and Building Systems,
provided that compliance with such Applicable Laws is not the responsibility of
Tenant under this Lease, and provided further that Landlord's failure to comply
therewith would prohibit Tenant from obtaining or maintaining a certificate of
occupancy for the Premises, or would unreasonably and materially affect the
safety of Tenant's Parties or create a significant health hazard for Tenant's
Parties or otherwise materially interfere with or materially affect Tenant's
Permitted Use and enjoyment of the Premises. Landlord shall be permitted to
include in Operating Expenses any costs or expenses incurred by Landlord under
this ARTICLE 24 to the
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extent consistent with, and amortized to the extent required by, the TCCs of
SECTION 4.2.4 of this Lease.
ARTICLE 25
LATE CHARGES
If any installment of Rent or any other sum due from Tenant shall not be
received by Landlord or Landlord's designee when due, unless such failure is
cured within five (5) business days after receipt of notice from Landlord
provided, however, Landlord shall not be required to give written notice more
than two times in any twelve month period (after which the late charge shall be
due without the requirement of notice if Tenant fails to make such payments on
or before the due date), then Tenant shall pay to Landlord a late charge equal
to five percent (5%) of the overdue amount. The late charge shall be deemed
Additional Rent and the right to require it shall be in addition to all of
Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner. In addition to the late charge described above, any Rent or other
amounts owing hereunder which are not paid within five (5) business days
following the due date for Base Rent, or within five (5) business days following
written notice that such amount was not paid when due for Additional Rent and
other sums which may become due under this Lease shall bear interest from the
date when due until paid at an annual interest rate equal to the Prime Rate (as
stated under the column "Money Rates" in THE WALL STREET JOURNAL) plus four
percent (4%); provided, however, in no event shall such annual interest rate
exceed the highest annual interest rate permitted by Applicable Law.
ARTICLE 26
LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT
26.1 LANDLORD'S CURE. All covenants and agreements to be kept or
performed by Tenant under this Lease shall be performed by Tenant at Tenant's
sole cost and expense and without any reduction of Rent, except to the extent,
if any, otherwise expressly provided herein. If Tenant shall fail to perform any
obligation under this Lease, and such failure shall continue in excess of the
time allowed under SECTION 19.1.2, above, unless a specific time period is
otherwise stated in this Lease, Landlord may, but shall not be obligated to,
make any such payment or perform any such act on Tenant's part without waiving
its rights based upon any default of Tenant and without releasing Tenant from
any obligations hereunder.
26.2 TENANT'S REIMBURSEMENT. Except as may be specifically provided to
the contrary in this Lease, Tenant shall pay to Landlord, within ten (10) days
following delivery by Landlord to Tenant of receipts therefor: (i) sums equal to
expenditures reasonably made and obligations incurred by Landlord in connection
with the remedying by Landlord of Tenant's defaults pursuant to the provisions
of SECTION 26.1; and (ii) sums equal to all losses, costs, liabilities, damages
and expenses referred to in ARTICLE 10 of this Lease. All of such sums shall be
deemed Additional Rent and the right to require it shall be in addition to all
of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as
48
limiting Landlord's remedies in any manner. Tenant's obligations under this
SECTION 26.2 shall survive the expiration or sooner termination of the Lease
Term.
ARTICLE 27
ENTRY BY LANDLORD
Landlord reserves the right during normal business hours, upon no less than
24 hours prior notice to Tenant (except in the case of an emergency), and in
compliance with Tenant's reasonable security measures, to enter the Premises to
(i) inspect them; (ii) show the Premises to prospective purchasers, current or
prospective mortgagees, ground or underlying lessors or insurers or, during the
last nine (9) months of the Lease Term, tenants, or prospective tenants; (iii)
post notices of nonresponsibility; or (iv) improve or repair the Premises or the
Building, or for structural alterations, repairs or improvements to the Building
or the Building's systems and equipment. Notwithstanding anything to the
contrary contained in this ARTICLE 27, Landlord may enter the Premises at any
time to (A) perform services required of Landlord, including janitorial service
(unless Tenant has given Landlord written notice that it does not want
janitorial service provided in a particular area ); (B) take possession, in
compliance with law, due to any breach of this Lease in the manner provided
herein; and (C) during normal business hours, upon forty-eight (48) hours prior
notice, perform any covenants of Tenant which Tenant fails to perform (after
notice, and an opportunity to cure, if expressly provided in this Lease).
Landlord may make any such entries without the abatement of Rent and may take
such reasonable steps as required to accomplish the stated purposes. In
connection with any entry into the Premises, Landlord agrees to make reasonable
efforts to minimize interference with Tenant's operations in the Premises caused
by such entry and to minimize the duration of any such interference. Tenant
hereby waives any claims for damages or for any injuries or inconvenience to or
interference with Tenant's business, lost profits, any loss of occupancy or
quiet enjoyment of the Premises, and any other loss occasioned thereby, except
with respect to damage to Tenant's personal property or the amount of any
physical injury, but only to the extent such damage is caused by the negligent
acts or omissions or willful misconduct of Landlord, its agents, employees and
contractors, and in such event, only the extent not covered by Tenant's
insurance required to be carried hereunder. For each of the above purposes,
Landlord shall at all times have a key or card key with which to unlock all the
doors in the Premises, excluding Tenant's vaults, safes and special security
areas designated in advance by Tenant (the "SECURITY Areas"). Notwithstanding
anything set forth in this ARTICLE 27 to the contrary, Landlord shall have no
access or inspection rights as to the Security Areas, except in the event of an
emergency where such entry is reasonably required. In an emergency, Landlord and
its agents, employees and contractors shall have the right to use any means that
Landlord may deem proper to open the doors in and to the Premises, provided
Landlord has reasonably attempted, but to no avail, to obtain Tenant's immediate
cooperation in connection therewith. Any entry into the Premises by Landlord in
the manner hereinbefore described shall not be deemed to be a forcible or
unlawful entry into, or a detainer of, the Premises, or an actual or
constructive eviction of Tenant from any portion of the Premises. No provision
of this Lease shall be construed as obligating Landlord to perform any repairs,
alterations or decorations except as otherwise expressly agreed to be performed
by Landlord herein.
49
ARTICLE 28
TENANT PARKING
Tenant and the Tenant's parties (including Tenant's visitors) shall be
entitled to utilize, without charge, and on a non-exclusive basis, commencing on
the Lease Commencement Date, the amount of unreserved and unassigned parking
spaces set forth in SECTION 9 of the Summary. Tenant shall cooperate with
Landlord to ensure that Tenant's agents, servants, employees, and contractors
(collectively, "TENANT PARTIES") comply with the Rules and Regulations which are
prescribed from time to time by Landlord for the orderly operation and use of
the parking areas where the parking spaces are located, including Tenant's
cooperation in seeing that Tenant's employees and visitors also comply with such
Rules and Regulations. Landlord specifically reserves the right to make
reasonable changes to the size, configuration, design, layout and all other
aspects of the Project parking areas and improvements at any time upon thirty
(30) days' prior written notice to Tenant and Tenant acknowledges and agrees
that Landlord may, without incurring any liability to Tenant and without any
abatement of Rent under this Lease, from time to time, temporarily close-off or
restrict access to portions of the Project parking areas for purposes of
permitting or facilitating any such construction, alteration or improvements;
provided, however, that Landlord will undertake reasonable efforts to minimize
the number of parking spaces affected by and the duration of any such temporary
restrictions on use of the parking areas and provided further that Tenant is
provided commercially reasonable access to the Building at all times. In no
event shall Tenant's Share of parking on the Project be permanently reduced
below any minimum parking ratio required under Applicable Laws or Tenant's
parking allocation set forth in Section 9 of the Lease Summary, or in any manner
which would materially, adversely interfere with Tenant's use and occupancy of
the Premises. Landlord may delegate its responsibilities hereunder to a parking
operator in which case such parking operator shall have all the rights of
parking area control attributed hereby to the Landlord. The parking spaces
available to Tenant pursuant to this ARTICLE 28 are provided to Tenant solely
for use by the Tenant Parties and such spaces may not be transferred, assigned,
subleased or otherwise alienated by Tenant, except on a pro-rata basis in
connection with an assignment or subletting of the Premises permitted or
approved in accordance with the TCCs of ARTICLE 14. Tenant shall not utilize any
of the Project parking areas for the overnight storage of vehicles owned by
Tenant or its employees, agents or contractors, although Tenant may permit its
employees to occasionally leave their personal automobiles in the parking areas
when traveling on business for periods under one week at a time, provided that
Tenant does not exceed its parking allocation as set forth in Section 9 of the
Summary.
ARTICLE 29
MISCELLANEOUS PROVISIONS
29.1 TERMS; CAPTIONS. The words "Landlord" and "Tenant" as used herein
shall include the plural as well as the singular. The necessary grammatical
changes required to make the provisions hereof apply either to corporations or
partnerships or individuals, men or women, as the case may require, shall in all
cases be assumed as though in each case fully expressed. The captions of
Articles and Sections are for convenience only and shall not be deemed to limit,
construe, affect or alter the meaning of such Articles and Sections.
50
29.2 BINDING EFFECT. Subject to all other provisions of this Lease, each
of the covenants, conditions and provisions of this Lease shall extend to and
shall, as the case may require, bind or inure to the benefit not only of
Landlord and of Tenant, but also of their respective heirs, personal
representatives, successors or assigns, provided this clause shall not permit
any assignment by Tenant contrary to the provisions of ARTICLE 14 of this Lease.
29.3 NO AIR RIGHTS. No rights to any view or to light or air over any
property, whether belonging to Landlord or any other person, are granted to
Tenant by this Lease. If at any time any windows of the Premises are temporarily
darkened or the light or view therefrom is obstructed by reason of any repairs,
improvements, maintenance or cleaning in or about the Project, the same shall be
without liability to Landlord and without any reduction or diminution of
Tenant's obligations under this Lease.
29.4 TRANSFER OF LANDLORD'S INTEREST. Tenant acknowledges that Landlord
has the right to transfer all or any portion of its interest in the Project or
Building and in this Lease, and Tenant agrees that in the event of any such
transfer, Landlord shall automatically be released from all liability under this
Lease not accrued on or prior to the date of the transfer so long as the
transferee has agreed to assume Landlord's future obligations under the Lease,
and Tenant agrees to look solely to such transferee for the performance of
Landlord's obligations hereunder for events occurring after the date of transfer
and to attorn to such transferee. Tenant further acknowledges that Landlord may
assign its interest in this Lease to a mortgage lender as additional security.
Landlord acknowledges that to the extent any Landlord obligation or liability
under this Lease is accrued prior to the date of such transfer or assignment
which is not assumed by the transferee or assignee, the same shall remain an
obligation of Landlord.
29.5 PROHIBITION AGAINST RECORDING. Neither this Lease, nor any
memorandum, affidavit or other writing with respect thereto, shall be recorded
by Tenant or by anyone acting through, under or on behalf of Tenant, without
Landlord's written consent thereto. Notwithstanding the foregoing, at Tenant's
request, Landlord shall execute a Notice of Lease in recordable form.
29.6 LANDLORD'S TITLE. Landlord's title is and always shall be
paramount to the title of Tenant. Nothing herein contained shall empower Tenant
to do any act which can, shall or may encumber the title of Landlord.
29.7 RELATIONSHIP OF PARTIES. Nothing contained in this Lease shall be
deemed or construed by the parties hereto or by any third party to create the
relationship of principal and agent, partnership, joint venturer or any
association between Landlord and Tenant.
29.8 APPLICATION OF PAYMENTS. Landlord shall have the right to apply
payments received from Tenant pursuant to this Lease, regardless of Tenant's
designation of such payments, to satisfy any obligations of Tenant hereunder, in
such order and amounts as Landlord, in its sole discretion, may elect.
29.9 TIME OF ESSENCE. Time is of the essence with respect to the
performance of every provision of this Lease in which time of performance is a
factor.
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29.10 PARTIAL INVALIDITY. If any term, provision or condition contained
in this Lease shall, to any extent, be invalid or unenforceable, the remainder
of this Lease, or the application of such term, provision or condition to
persons or circumstances other than those with respect to which it is invalid or
unenforceable, shall not be affected thereby, and each and every other term,
provision and condition of this Lease shall be valid and enforceable to the
fullest extent possible permitted by law.
29.11 NO WARRANTY. In executing and delivering this Lease, Tenant has not
relied on any representations (except as specifically set forth in this Lease),
including, but not limited to, any representation as to the amount of any item
comprising Additional Rent or the amount of the Additional Rent in the aggregate
or that Landlord is furnishing the same services to other tenants, at all, on
the same level or on the same basis, or any warranty or any statement of
Landlord which is not set forth herein or in one or more of the exhibits
attached hereto.
29.12 LANDLORD EXCULPATION. The liability of Landlord or the Landlord
Parties to Tenant for any default by Landlord under this Lease or arising in
connection herewith or with Landlord's operation, management, leasing, repair,
renovation, alteration or any other matter relating to the Project or the
Premises shall be limited solely and exclusively to an amount which is equal to
the interest of Landlord in the Project or to insurance proceeds received by
Landlord. Neither Landlord, nor any of the Landlord Parties shall have any
personal liability relating to the Premises, the Project, the Building or this
Lease, and Tenant hereby expressly waives and releases such personal liability
on behalf of itself and all persons claiming by, through or under Tenant. The
limitations of liability contained in this SECTION 29.12 shall inure to the
benefit of Landlord's and the Landlord Parties' present and future partners,
beneficiaries, officers, directors, trustees, shareholders, agents and
employees, and their respective partners, heirs, successors and assigns. Under
no circumstances shall any present or future partner of Landlord (if Landlord is
a partnership), or trustee or beneficiary (if Landlord or any partner of
Landlord is a trust), or member (if Landlord is a limited liability company)
have any liability for the performance of Landlord's obligations under this
Lease. Notwithstanding any contrary provision herein, neither Landlord nor the
Landlord Parties shall be liable under any circumstances for injury or damage
to, or interference with, Tenant's business, including but not limited to, loss
of profits, loss of rents or other revenues, loss of business opportunity, loss
of goodwill or loss of use, in each case, however occurring.
29.13 ENTIRE AGREEMENT. It is understood and acknowledged that there are
no oral agreements between the parties hereto affecting this Lease and this
Lease constitutes the parties' entire agreement with respect to the leasing of
the Premises and supersedes and cancels any and all previous negotiations,
arrangements, brochures, agreements and understandings, if any, between the
parties hereto or displayed by Landlord to Tenant with respect to the subject
matter thereof, and none thereof shall be used to interpret or construe this
Lease. None of the TCCs of this Lease can be modified, deleted or added to
except in writing signed by the parties hereto.
29.14 RIGHT TO LEASE. Landlord reserves the absolute right to effect such
other tenancies in the Project as Landlord in the exercise of its sole business
judgment shall determine to best promote the interests of the Building or
Project. Tenant does not rely on the fact, nor does Landlord represent, that any
specific tenant or type or number of tenants shall, during the Lease Term,
occupy any space in the Building or Project.
52
29.15 FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God (including inclement weather), inability
to obtain utilities (subject to the provisions of SECTION 6.3), labor, or
materials or reasonable substitutes therefor, governmental actions, civil
commotions, fire or other casualty, and other causes beyond the reasonable
control of the party obligated to perform, except with respect to the
obligations imposed with regard to Rent and other charges to be paid by Tenant
pursuant to this Lease (collectively, a "FORCE MAJEURE"), notwithstanding
anything to the contrary contained in this Lease, shall excuse the performance
of such party for a period equal to any such prevention, delay or stoppage and,
therefore, if this Lease specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of
any delay in such party's performance caused by a Force Majeure; provided,
however, such extension shall not exceed sixty (60) consecutive days.
29.16 NOTICES. All notices, demands, statements, designations, approvals
or other communications (collectively, "NOTICES") given or required to be given
by either party to the other hereunder or by law shall be in writing, shall be
(A) sent by United States certified or registered mail, postage prepaid, return
receipt requested ("MAIL"), (B) transmitted by telecopy, if such telecopy is
promptly followed by a Notice sent by Mail or recognized overnight courier, (C)
delivered by a nationally recognized overnight courier, or (D) delivered
personally. Any Notice shall be sent, transmitted, or delivered, as the case may
be, to Tenant at the appropriate address set forth in SECTION 10 of the Summary,
or to such other place as Tenant may from time to time designate in a Notice to
Landlord, or to Landlord at the addresses set forth below, or to such other
places as Landlord may from time to time designate in a Notice to Tenant. Any
Notice will be deemed given (i) three (3) days after the date it is posted if
sent by Mail, (ii) the date the telecopy is transmitted, (iii) the date the
overnight courier delivery is made, or (iv) the date personal delivery is made
or attempted to be made. If Tenant is required under any separate written
agreement between Tenant and a mortgagee or ground lessor to notify such party
of any default by Landlord under this Lease, then Tenant shall give to such
mortgagee or ground or underlying lessor written notice of any default by
Landlord under the TCCs of this Lease by registered or certified mail, and such
mortgagee or ground or underlying lessor shall be given a reasonable opportunity
to cure such default prior to Tenant's exercising any remedy available to
Tenant. As of the date of this Lease, any Notices to Landlord and Tenant must be
sent, transmitted, or delivered, as the case may be, to the following addresses:
LANDLORD:
--------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇
with copies to:
Berwind Property Group, Ltd.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
General Counsel
53
TENANT:
------
Prior to July 1, 2003
EXACT Sciences Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
From and After July 1 to the Premises:
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
With copies to:
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Real Estate Department
29.17 JOINT AND SEVERAL. If there is more than one Tenant, the
obligations imposed upon Tenant under this Lease shall be joint and several.
29.18 AUTHORITY. Each individual executing this Lease hereby represents
and warrants that Landlord or Tenant, as applicable, is a duly formed and
existing entity qualified to do business in the Commonwealth of
Massachusetts
and has full right and authority to execute and deliver this Lease and that each
person signing on behalf of Landlord or Tenant is authorized to do so.
29.19 ATTORNEYS' FEES. In the event that either Landlord or Tenant should
bring suit for the possession of the Premises, for the recovery of any sum due
under this Lease, or because of the breach of any provision of this Lease or for
any other relief against the other, then all costs and expenses, including
reasonable attorneys' fees, incurred by the prevailing party therein shall be
paid by the other party, which obligation on the part of the other party shall
be deemed to have accrued on the date of the commencement of such action and
shall be enforceable whether or the action is prosecuted to judgment or disposed
of through settlement or otherwise.
29.20 GOVERNING LAW. This Lease shall be construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts. Except as
otherwise provided herein, all disputes arising hereunder, and all legal actions
and proceedings related thereto, shall be solely and exclusively initiated and
maintained in the court with the appropriate jurisdiction located in the City of
Marlborough, County of Middlesex, Commonwealth of Massachusetts. IN ANY ACTION
OR PROCEEDING ARISING HEREFROM, LANDLORD AND TENANT HEREBY CONSENT TO (I) THE
JURISDICTION OF ANY COMPETENT COURT WITHIN THE COMMONWEALTH OF MASSACHUSETTS,
AND (II) SERVICE OF PROCESS BY ANY MEANS AUTHORIZED BY MASSACHUSETTS LAW. IN THE
EVENT LANDLORD
54
COMMENCES ANY SUMMARY PROCEEDINGS OR ACTION FOR NONPAYMENT OF
BASE RENT OR ADDITIONAL RENT, TENANT SHALL NOT INTERPOSE ANY COUNTERCLAIM OF ANY
NATURE OR DESCRIPTION (UNLESS SUCH COUNTERCLAIM SHALL BE MANDATORY) IN ANY SUCH
PROCEEDING OR ACTION, BUT SHALL BE RELEGATED TO AN INDEPENDENT ACTION AT LAW.
29.21 SUBMISSION OF LEASE. Submission of this instrument for examination
or signature by Tenant does not constitute a reservation of, option for or
option to lease, and it is not effective as a lease or otherwise until execution
and delivery by both Landlord and Tenant.
29.22 BROKERS. Landlord and Tenant hereby warrant to each other that they
have had no dealings with any real estate broker or agent in connection with the
negotiation of this Lease, excepting only the real estate brokers or agents
specified in SECTION 12 of the Summary (the "BROKERS"), and that they know of no
other real estate broker or agent who is entitled to a commission in connection
with this Lease. Landlord shall pay a commission or brokerage fee to the Brokers
pursuant to a separate written agreement between Landlord and Brokers. Each
party agrees to indemnify and defend the other party against and hold the other
party harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments, costs and expenses (including without limitation reasonable
attorneys' fees) with respect to any leasing commission or equivalent
compensation alleged to be owing on account of any dealings with any real estate
broker or agent, other than the Brokers, occurring by, through, or under the
indemnifying party.
29.23 INDEPENDENT COVENANTS. As a material inducement for Landlord and
Tenant to enter into this Lease, both Landlord and Tenant acknowledge and agree
that this Lease shall be construed as though the covenants herein between
Landlord and Tenant are independent and not dependent and Tenant hereby
expressly waives the benefit of any currently existing or hereinafter enacted
statute or caselaw to the contrary and agrees that if Landlord fails to perform
its obligations set forth herein, except as otherwise expressly set forth in
this Lease, Tenant shall not be entitled to make any repairs or perform any acts
hereunder at Landlord's expense or to any setoff of the Rent or other amounts
owing hereunder against Landlord or terminate this Lease as a result of
Landlord's failure to perform or refraining from performing any covenant or
obligation of Landlord hereunder.
29.24 PROJECT OR BUILDING NAME AND SIGNAGE. Landlord shall have the right
at any time to change the name of the Project or Building and to install, affix
and maintain any and all signs on the exterior and on the interior of the
Project or Building as Landlord may, in Landlord's sole discretion, desire.
Tenant shall not use the name of the Project or Building or use pictures or
illustrations of the Project or Building in advertising or other publicity or
for any purpose other than as the address of the business to be conducted by
Tenant in the Premises, without the prior written consent of Landlord.
29.25 COUNTERPARTS. This Lease may be executed in counterparts with the
same effect as if both parties hereto had executed the same document. Both
counterparts shall be construed together and shall constitute a single lease.
Signatures may be made by facsimile provided the original is promptly delivered
to the other party by overnight courier.
55
29.26 CONFIDENTIALITY. Tenant hereby acknowledges that the contents of
this Lease and any related documents are confidential information, and Tenant
shall keep such confidential information strictly confidential and shall not
disclose such confidential information to any person or entity other than
Tenant's partners, administrators, consultants, financial, legal, and space
planning consultants, a prospective Transferee, and except as required by
Applicable Law or in connection with a dispute or litigation hereunder or as
required by subpoena, or as required to be disclosed publicly by Tenant through
filings with the Securities and Exchange Commission.
29.27 TRANSPORTATION MANAGEMENT. Tenant shall comply with all present or
future programs required by Applicable Law (provided Landlord provides Tenant
with sufficient prior notice of such program's requirements) which are intended
to manage parking, transportation or traffic in and around the Project, and in
connection therewith, Tenant shall take responsible action for the
transportation planning and management of all employees located at the Premises
by working directly with Landlord, any governmental transportation management
organization or any other transportation-related committees or entities.
29.28 BUILDING RENOVATIONS. Except as expressly set forth in SECTION 1.1
and in any other provisions of this Lease expressly setting forth a maintenance
obligation of Landlord, Landlord has no obligation and has made no promises to
alter, remodel, improve, renovate, repair or decorate the Premises, Building, or
any part thereof and Tenant acknowledges that, except as expressly set forth in
SECTION 5.4, no representations or warranties respecting the condition of the
Premises or the Building have been made by Landlord to Tenant. However, Tenant
hereby acknowledges that Landlord may during the Lease Term renovate, improve,
alter, or modify (collectively, the "RENOVATIONS") the Project, the Building
and/or the Premises including without limitation the parking structure, Common
Areas, systems and equipment, roof, and structural portions of the same. Tenant
hereby agrees that such Renovations and Landlord's actions in connection with
such Renovations shall in no way constitute a constructive eviction of Tenant
nor entitle Tenant to any abatement of Rent. Landlord shall have no
responsibility or for any reason be liable to Tenant for any direct or indirect
injury to or interference with Tenant's business arising from the Renovations,
nor shall Tenant be entitled to any compensation or damages from Landlord for
loss of the use of the whole or any part of the Premises or of Tenant's personal
property or improvements resulting from the Renovations or Landlord's actions in
connection with such Renovations, or for any inconvenience or annoyance
occasioned by such Renovations or Landlord's actions provided the performance of
such Renovations does not materially adversely interfere with Tenant's use or
occupancy of the Premises, the Project or the Common Areas for the Permitted
Use.
29.29 NO VIOLATION. Landlord and Tenant hereby warrant and represent that
neither its execution of nor performance under this Lease shall cause either
party to be in violation of any agreement, instrument, contract, law, rule or
regulation by which it is bound, and each party shall protect, defend, indemnify
and hold the other harmless against any claims, demands, losses, damages,
liabilities, costs and expenses, including, without limitation, reasonable
attorneys' fees and costs, arising from the other party's breach of this
warranty and representation.
29.30 COMMUNICATIONS AND COMPUTER LINES. Landlord has provided certain
data, voice, and telecommunications infrastructure to the boundary of the
Premises, which Tenant
56
accepts on an "as-is" basis, and Tenant shall be responsible for expansion and
maintenance of such infrastructure within the Premises. Tenant shall have the
use of any existing communications or computer wires and cables (collectively,
the "LINES") located on the fifth and sixth floor of the Building at Tenant's
sole risk, cost and expense, and, subject to the provisions of ARTICLE 8
(including, without limitation, Landlord's conditioning its approval upon the
restoration of any portion of the Project disturbed by such installation) shall
have the right at its sole cost and expense to install its own wires, cables,
conduits, auxiliary equipment and other related equipment and facilities within
the Premises.
29.31 HAZARDOUS MATERIALS. Landlord and Tenant agree as follows with
respect to the existence or use of "Hazardous Material" in or on the Premises
and/or the Project.
29.31.1 Tenant, at its sole cost and expense, shall comply
with all laws, statutes, ordinances, rules and regulations of any local, state
or federal governmental authority (including, without limitation, the Fire
Department of the City of Marlborough, and the Local Emergency Planning
Committee, if any) having jurisdiction concerning environmental, health and
safety matters (collectively, "ENVIRONMENTAL LAWS"), including, but not limited
to, any discharge into the air, surface, water, sewers, soil or groundwater of
any Hazardous Material (as defined in SUBSECTION 29.31.3, below), whether within
or outside the Premises, within the Project. Notwithstanding the foregoing,
nothing contained in this Lease requires, or shall be construed to require,
Tenant to incur any liability related to or arising from environmental
conditions (except to the extent set forth in SUBSECTION 4.2.4 (V)): (i) for
which the Landlord is responsible pursuant to the express terms of this Lease,
(ii) which existed within the Premises or the Project prior to the date Tenant
takes possession of the Premises, (iii) which are unrelated to the acts or
omissions of Tenant, its employees, officers, contractors, representatives or
agents (individually and/or collectively, "Tenant Party"),or (iv) which were
caused solely by a third party which is not a Tenant Party.
29.31.2 Tenant shall not cause or permit any Hazardous
Material to be brought upon, handled, kept, stored or used in or about the
Premises or otherwise in the Project by Tenant, its agents, employees,
contractors or invitees, except for Hazardous Materials which are typically used
in the operation of offices, and except for Hazardous Material which are used by
Tenant in connection with the Permitted Use and which are specifically listed on
EXHIBIT G attached hereto, provided that all such materials are stored, used and
disposed of in strict compliance with all applicable Environmental Laws and with
good scientific and medical practice, and provided further that all such
materials shall be removed from the Premises and the Project prior to the
expiration or earlier termination of this Lease in accordance with all
applicable laws at the sole cost and expense of Tenant. Subject to the
provisions of this SECTION 29.31, Tenant shall update Landlord in writing,
monthly, or more often upon Landlord's request, with increases, changes and/or
additions to EXHIBIT G (the "New Materials") made after the date of this Lease,
and subject to the provisions of this SECTION 29.31, the update shall be deemed
to be incorporated into EXHIBIT G unless Landlord subsequently objects thereto.
If, upon Landlord's receipt of notification from Tenant regarding Tenant's use
of New Materials, Landlord objects to Tenant's use of any of the New Materials,
Landlord and Tenant shall meet to determine what protocols Tenant may institute
in order to satisfy any concerns raised by Landlord, and Tenant shall either (i)
implement any such protocols reasonably suggested by Landlord and/or Landlord's
consultants, or (ii) cease utilizing the particular New Material(s) to
57
which Landlord objected and promptly remove same from the Premises and the
Project upon written notice from Landlord. Notwithstanding anything to the
contrary, Tenant shall not cause or permit any radioactive materials or
radioactive isotopes to be brought upon, handled, kept, stored or used in or
about the Premises or otherwise in the Project by Tenant, its agents, employees,
contractors or invitees without the prior written consent of Landlord (which
consent shall not be unreasonably withheld, conditioned or delayed, in light of
the Permitted Use and the safety protocols specifically identified by and
utilized by Tenant). Notwithstanding the foregoing, with respect to any of
Tenant's Hazardous Material which Tenant does not properly handle, store or
dispose of in compliance with all applicable Environmental Laws and good
scientific and medical practice, Tenant shall, upon written notice from
Landlord, no longer have the right to bring such material into the buildings or
the Project until Tenant has demonstrated, to Landlord's reasonable
satisfaction, that Tenant has implemented programs to thereafter properly
handle, store or dispose of such material.
29.31.3 As used herein, the term "Hazardous Material" means
any flammable substances, explosives, and radioactive materials, and any
hazardous or toxic substance, material or waste or petroleum derivative which is
or becomes regulated by any Environmental Law, specifically including live
organisms, viruses and fungi, medical waste, and so-called "biohazard"
materials. The term "Hazardous Material" includes, without limitation, any
material or substance which is (i) designated as a "hazardous substance"
pursuant to Section 1311 of the Federal Water Pollution Control Act (33 U.S.C.
Section 1317), (ii) defined as a "hazardous waste" pursuant to Section 1004 of
the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et
seq. (42 U.S.C. Section 6903), (iii) defined as a "hazardous substance" pursuant
to Section 101 of the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C. Section 9601), (iv)
defined as "hazardous substance" or "oil" under Chapter 21E of the General Laws
of Massachusetts, or (v) a so-called "biohazard" or medical waste, or is
contaminated with blood or other bodily fluids; and "Environmental Laws"
include, without limitation, the laws listed in the preceding clauses (i)
through (iv).
29.31.4 Any increase in the premium for necessary insurance on
the Premises or the Project which arises from Tenant's use and/or storage of
these Hazardous Materials shall be solely at Tenant's expense. Tenant shall
procure and maintain at its sole expense such additional insurance as may be
necessary to comply with any requirement of any Federal, State or local
government agency with jurisdiction.
29.31.5 Tenant hereby covenants and agrees to indemnify,
defend and hold Landlord harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities or losses (collectively "Losses") which
Landlord may reasonably incur arising out of contamination of real estate, the
Project, or other property not a part of the Premises, which contamination
arises as a result of: (i) the presence of Hazardous Material in the Premises or
the Project, the presence of which is caused or permitted by Tenant, its agents,
employees, contractors or invitees, or (ii) from a breach by Tenant of its
obligations under this SECTION 29.31. This indemnification of Landlord by Tenant
includes, without limitation, reasonable costs incurred in connection with any
investigation of site conditions or any cleanup, remedial, removal or
restoration work required by any federal, state or local governmental agency or
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political subdivision because of Hazardous Material present in the soil or
ground water on or under the Premises based upon the circumstances identified in
the first sentence of this SUBSECTION 29.31.5. The indemnification and hold
harmless obligations of Tenant under this SUBSECTION 29.31.5 shall survive any
termination of this Lease. Without limiting the foregoing, if the presence of
any Hazardous Material in the buildings or otherwise in the Project caused or
permitted by Tenant results in any contamination of the Premises, Tenant shall
give immediate notice thereof to Landlord and shall promptly take all actions at
its sole expense as are necessary to return the Premises to a condition which
complies with all Environmental Laws; provided that Landlord's approval of such
actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions, in Landlord's reasonable discretion, would not
potentially have any materially adverse long-term or short-term effect on the
Premises, and, in any event, Landlord shall not withhold its approval of any
proposed actions which are required by applicable Environmental Laws.
Notwithstanding anything to the contrary in the Lease contained, the foregoing
indemnity shall not apply to: (i) any Hazardous Materials which exist in the
Premises or elsewhere in the Project prior to and as of the Lease Commencement
Date, or (ii) any Hazardous Materials introduced to the Project by other tenants
within their respective premises, or (iii) any Hazardous Materials the presence
of which were not caused or permitted by the acts or omissions of Tenant, its
employees, agents, consultants and/or contractors.
29.31.6 Notwithstanding anything to the contrary in this
Lease, if Tenant fails to cure any breach or default of this SECTION 29.31
within five (5) business days after written notice from Landlord (or if such
default cannot be cured within said five day period, to commence to cure said
period during said five day period and diligently proceed to cure such default
within thirty (30) days), such failure shall constitute a default under this
Lease, and in the event of such a default, in addition to any other remedies
available to Landlord under this Lease, Landlord may terminate this Lease upon
ten (10) days written notice to Tenant.
29.31.7 Tenant shall, after Tenant, and anyone claiming by,
through or under Tenant, vacate the Premises, and immediately prior to the time
that Tenant delivers the Premises to Landlord: (i) cause the Premises to be
decommissioned in accordance with the regulations of the U.S. Nuclear Regulatory
Commission and/or the Massachusetts Department of Public Health for the control
of radiation; (ii) provide a written report by a licensed industrial hygienist
or equivalent to confirm that the Premises contain no contaminants per the
National Institute of Health (or its successor organization) rules and
regulations on bio-safety as administered by the Department of Health; and (iii)
provide a copy of its most current chemical waste removal manifest and a
certification from an officer of Tenant that no chemicals remain in the
Premises.
29.31.8 Landlord shall have the right from time to time to
conduct (or retain one or more consultants to conduct) environmental audits of
the Premises to ensure and verify Tenant's compliance with this SECTION 29.31,
upon three (3) business days advance written notice to Tenant. Tenant agrees to
cooperate with the person or entity conducting said audit and to supply all
information reasonably requested in connection therewith. Tenant shall pay the
cost of such audit if such audit discloses that Tenant has materially violated
any of the provisions of this SECTION 29.31; otherwise, the cost of said audit
shall be paid for by Landlord.
29.31.9 Tenant shall not dispose of any Hazardous Materials at
the Project (including, without limitation, placing, or permitting any Hazardous
Materials to be placed into
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the sewer system servicing the Project), except as permitted by law in approved
and environmentally safe containers which Tenant will dispose of off-site.
Tenant shall give Landlord written notice annually (and from time to time, if
changed) of the name, address and telephone number of the contractor that will
be responsible for removal of all Hazardous Materials disposed of by Tenant from
the Premises and/or the Project.
29.31.10 Tenant shall provide Landlord with a copy of its
Chemical Hygiene Plan (as set forth in OSHA 1910.1450) annually, or more often
as and when it is amended.
29.32 DEVELOPMENT OF THE PROJECT.
29.32.1 SUBDIVISION. Subject to the requirements of ARTICLE 28,
Landlord reserves the right to further subdivide all or a portion of the Project
and to add to, remove, or otherwise change the parking areas and Common Areas
(subject to the restrictions set forth in SECTION 1.3, above), so long as such
adjustment does not materially interfere with Tenant's use, enjoyment or
occupancy of the Premises. In the event of any such change, an equitable
adjustment to the Tenant's Share, if appropriate, shall be made. In the event of
a reduction in the Common Areas, the square footage in the Project and the
Premises shall be recalculated, if applicable, as set forth in SECTION 1.3,
above.
29.32.2 OTHER IMPROVEMENTS. If portions of the Project or
property adjacent to the Project (collectively, the "OTHER IMPROVEMENTS") are
owned by an entity other than Landlord, Landlord, at its option, may enter into
an agreement with the owner or owners of any or all of the Other Improvements to
provide (i) for reciprocal rights of access and/or use of the Project and the
Other Improvements, (ii) for the common management, operation, maintenance,
improvement and/or repair of all or any portion of the Project and the Other
Improvements, (iii) for the allocation of a portion of the Direct Expenses to
the Other Improvements and the operating expenses and taxes for the Other
Improvements to the Project, and (iv) for the use or improvement of the Other
Improvements and/or the Project in connection with the improvement,
construction, and/or excavation of the Other Improvements and/or the Project,
provided, however, that if any Direct Expenses related to the Other Improvements
are being allocated to the Project, the limitations set forth in Section 4 above
shall apply to such Direct Expenses, and provided further, that the Additional
Rent payable by Tenant pursuant to Section 4 of this Lease shall not increase
solely as a result of such allocation (i.e. shall not increase more than it
would have increased in the absence of such allocation). Nothing contained
herein shall be deemed or construed to limit or otherwise affect Landlord's
right to convey all or any portion of the Project or any other of Landlord's
rights described in this Lease.
29.32.3 CONSTRUCTION OF PROJECT AND OTHER IMPROVEMENTS. Tenant
acknowledges that portions of the Project and/or the Other improvements may be
under construction following Tenant's occupancy of the Premises, and that such
construction may result in levels of noise, dust, obstruction of access, etc.
which are in excess of that present in a fully constructed project. Landlord
agrees to exercise commercially reasonable efforts to minimize any interference
with Tenant's use and enjoyment of the Premises associated with such
construction. Tenant hereby waives any and all rent offsets or claims of
constructive eviction which may arise in connection with such construction,
provided such construction by Landlord
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does not interfere with Tenant's use or occupancy of the Premises, the Project
or the Common Areas for the Permitted Use.
29.33 NO CONSEQUENTIAL DAMAGES. Notwithstanding any provision of this
Lease to the contrary, except as specifically set forth in ARTICLE 16 of this
lease, under no circumstances shall either party hereto be liable to the other
party for any consequential, incidental, punitive or special damages.
29.34 COMPLIANCE WITH TIF AGREEMENT. Landlord and Tenant acknowledge that
there is a Tax Increment Financing Agreement by and between the City of
Marlborough and BNP Leasing Corporation dated January 31, 1997, as amended by an
Agreement by and between the City of Marlborough and 3Com Corporation dated
February 25, 2002, concerning the Property (the "TIF Agreement"). Tenant agrees
to provide Landlord on or before July 10 annually with a statement substantially
in the form attached hereto as EXHIBIT F for the prior fiscal year ending June
30, and a statement setting forth the total number of jobs located at the
Premises for the same period, and such other information as may reasonably be
requested by Landlord to facilitate Landlord's compliance with any requirements
of the TIF Agreement.
29.35 TENANT'S FINANCIAL CONDITION. Within ten (10) days after written
request from Landlord, but not more than once in any twelve month period, Tenant
shall deliver to Landlord such financial statements as are reasonably required
by Landlord to verify the net worth of Tenant, or any assignee, subtenant, or
guarantor of Tenant. In addition, Tenant shall deliver to any lender designated
by Landlord any financial statements required by such lender to facilitate the
financing or refinancing of the Premises, Building or Project. Tenant represents
and warrants to Landlord that each such financial statement is a true and
accurate statement as of the date of such statement. All financial statements
shall be confidential and shall be used only for the purposes set forth herein.
ARTICLE 30
RIGHT OF FIRST OFFER
Provided that no event of default has occurred and is continuing under the
terms of this Lease, and subject to any rights granted to other tenants
occupying such space to extend or renew their lease(s), Tenant shall have the
right of first offer with respect to any space which becomes available on the
fourth floor of the Building. Landlord shall give Tenant written notice
("Landlord's Notice") at least thirty (30) days prior to the date on which any
such space ("Expansion Space") is expected to become available and the terms
under which Landlord is willing to lease such Expansion Space to Tenant
(including the initial Base Rent, rights to extend, if any, and how the Base
Rent will be determined during such extended terms), and Tenant shall have the
right to be exercised in writing within ten (10) days thereafter, to agree to
lease such space upon said terms and conditions. Landlord shall prepare and
deliver to Tenant an amendment to this lease or a lease for any such Expansion
Space, substantially in the same form as this Lease but incorporating the terms
and conditions contained in Landlord's Notice, and if Tenant does not enter into
such amendment or lease within ten days thereafter, Tenant will be deemed to
have waived its right of first offer with respect to that particular portion of
Expansion Space offered and Landlord may offer the Expansion Space to any party
upon terms
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that Landlord deems appropriate. Tenant's right of first offer shall be ongoing
during the duration of the Lease Term with respect to any portion of the
Expansion Space not previously included in a Landlord's Notice, notwithstanding
Tenant's refusal of any portion of Expansion Space offered to Tenant at any time
during the Lease Term. Nothing in this Section is intended to preclude or limit
Landlord's right to grant tenants of such Expansion Space renewal rights or
expansion rights which shall have priority over the rights of Tenant under this
Lease.
ARTICLE 31
SATELLITE DISH
31.1 SATELLITE DISH. Subject to the provisions and conditions of this
Article 31, Landlord hereby consents to the installation of a satellite dish
antenna in a portion of the roof of the Building (the "SATELLITE DISH"), in such
location as may be designated by Landlord, for the sole use of Tenant. Tenant
agrees and hereby covenants to Landlord as follows:
31.1.1 The Satellite Dish shall not be visible from ground
level, and shall not exceed thirty inches in diameter and shall not project more
than five feet above the roof surface of the Building, unless otherwise approved
by Landlord which approval shall not be unreasonably withheld;
31.1.2 Installation, service, repair, maintenance and removal of
the Satellite Dish shall be performed by a reputable contractor that has been
approved by Landlord in writing. Installation, service, repair and maintenance
of the Satellite Dish shall be performed during normal office hours (8:00 a.m.
to 5:00 p.m., Monday to Friday). Tenant shall have access to the roof of the
Building for the purposes of such maintenance; provided, however, that Tenant
shall not have access to the roof of any building in the Project unless
accompanied by Landlord's agent;
31.1.3 The installation, operation and maintenance of the
Satellite Dish shall not interfere with the peaceful enjoyment by any other
tenant of its respective premises and/or the operation of any other antennae or
satellite dishes which may be permitted by Landlord;
31.1.4 Tenant shall be solely liable for the installation,
maintenance, repair and removal of the Satellite Dish, and shall remove the
Satellite Dish and repair any damage caused by such removal prior to the
expiration or earlier termination of the Lease. The installation of the
Satellite Dish and operation, maintenance and removal of the Satellite Dish
shall be performed (i) in a good and workmanlike manner, so that they would not
create a hazard to life or property; (ii) in compliance with all applicable
federal, state and local laws, regulations and ordinances, (iii) with due care
and regard for safety and in a manner that will not cause injury or death to
persons or damage to property; (iv) so that no lien or other encumbrance shall
be placed on any portion of the Project, and (v) in a way that will not limit or
void any warranty on the roof nor cause nor permit leaking of the roof, nor
impair the structural integrity of any building in the Project; and
31.1.5 Tenant shall insure that its use and operation of the
Satellite Dish does not create a nuisance.
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IN WITNESS WHEREOF, Landlord and Tenant have caused this Lease to be
executed the day and date first above written.
"LANDLORD":
MARLBOROUGH CAMPUS LIMITED
PARTNERSHIP, a Massachusetts limited
partnership
By: Bergen of Marlborough, Inc., general
partner
By:
--------------------------------
Its:
--------------------------------
"TENANT":
EXACT SCIENCES CORPORATION
Attest:
By:
-------------------------------------
By: Name:
-------------------------- Title:
Name:
Title: (Corporate Seal)
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(ACKNOWLEDGMENT FOR CORPORATION)
COMMONWEALTH OF MASSACHUSETTS
SS.:
COUNTY OF _________________
BE IT REMEMBERED, that on this _____ day of January, 2003, before me, the
subscriber, a Notary Public of the Commonwealth of Massachusetts personally
appeared _____________________________, who, being by me duly sworn on his oath,
does depose and make proof to my satisfaction that he is the __________________
Secretary of
EXACT Sciences Corporation, the Tenant named in the foregoing
Lease; that _______________________ is ____President of said corporation; that
the execution of the foregoing Lease was duly authorized; and the seal affixed
to said instrument is the corporate seal and was thereto affixed and said
instrument signed and delivered by said __________________ President, as and for
his voluntary act and deed and as for the voluntary act and deed of said
corporation, in presence of deponent, who thereupon subscribed his name thereto
as witness.
Subscribed and sworn to
before me at ___________,
on the date aforesaid.
--------------------------
Secretary
---------------------------
Notary Public
(Notarial Seal)
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EXHIBIT A
OUTLINE OF PREMISES
[TO BE ATTACHED]
65
EXHIBIT B
PROJECT SITE PLAN
[TO BE ATTACHED]
66
EXHIBIT C
INVENTORY LIST
[TO BE ATTACHED]
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EXHIBIT D
RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS
The following rules and regulations (collectively, the "Rules") shall apply,
where applicable, to the Premises, the Building, the parking lot, the Project
and the appurtenances thereto:
A. GENERAL
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material of any nature shall be placed, emptied, or thrown in
those areas. At no time shall Tenant permit Tenant's employees, contractors
or other representatives to loiter in common areas or elsewhere in or about
the Building or Project.
2. Any Tenant or vendor sponsored activity or event in Common Area must be
approved and scheduled through Landlord's representative.
3. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed therein. Tenant shall pay for damage
resulting to any such fixtures or appliances from misuse by Tenant or its
agents, employees or invitees, and Landlord shall not in any case be
responsible therefor.
4. Alcoholic beverages (without Landlord's prior written consent), illegal
drugs or other illegal controlled substances are not permitted in the
Building nor will any person under the influence of the same be permitted
in the Building.
5. No firearms or other weapons are permitted in the Building.
6. No fighting or "horseplay" will be tolerated at any time in the Building.
7. Fire protection and prevention practices implemented by Landlord from time
to time, including participation in fire drills, must be observed by Tenant
at all times.
8. Tenant shall not operate or disturb any Building equipment, machinery,
valves or electrical controls.
9. Tenant shall not cause any unnecessary janitorial labor or services by
reason of Tenant's carelessness or indifference in the preservation of good
order and cleanliness.
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10. No signs, advertisements or notices shall be painted or affixed on or to
any windows, doors or other parts of the Building unless approved in
writing by Landlord.
11. Landlord shall have the power to prescribe the weight and position of safes
and other heavy equipment or items, which in all cases shall not in the
opinion of Landlord exceed acceptable floor loading and weight distribution
requirements. All damage done to the Building by the installation,
maintenance, operation, existence or removal of any property of Tenant
shall be repaired at the expense of Tenant.
12. No animals, except seeing-eye dogs, shall be brought into or kept in, on or
about the Premises.
13. Tenant shall not take any action which would violate Landlord's labor
contracts affecting the Building or which would cause any work stoppage,
picketing, labor disruption or dispute, or any interference with the
business of Landlord or any other tenant or occupant of the Building or
with the rights and privileges of any person lawfully in the Building.
Tenant shall take any actions necessary to resolve any such work stoppage,
picketing, labor disruption, dispute or interference and shall have pickets
removed and, at the request of Landlord, immediately terminate at any time
any construction work being performed in the Premises giving rise to such
labor problems, until such time as Landlord shall have given its written
consent for such work to resume, which consent shall not be unreasonably
withheld, conditioned or delayed. Tenant shall have no claim for damages of
any nature against Landlord in connection therewith.
14. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's opinion may
tend to impair the reputation of the Building or its desirability for
Landlord or other tenants. Upon written notice from Landlord, Tenant will
refrain from and/or discontinue such publicity immediately.
15. Smoking and discarding of smoking materials are permitted in designated
exterior locations only. No smoking is permitted outside the building
entrances. Tenant will instruct and notify its visitors and employees of
such policy.
16. No awnings or other projections shall be attached to the outside walls
(building perimeter) of the Building. No curtains, blinds, shades, or
screens shall be attached to or hung in, or used in connection with, any
window or door of the Premises, without the prior written consent of
Landlord, in Landlord's sole discretion. Window coverings must be Building
Standard.
17. Tenant shall cooperate with the Landlord to conserve energy. Before closing
and leaving the Premises at any time, Tenant shall exercise reasonable
efforts to minimize energy use by turning off lights and equipment not in
use.
18. There shall not be used in any space, or in the public halls of the
Building, either by any Tenant or by delivery personnel or others, in the
delivery or receipt of merchandise, any hand trucks, except those equipped
with rubber tires and sole guards.
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19. Tenant shall not use the Premises for housing, lodging or sleeping purposes
or permit preparation or warming of food in the Premises (except in
Landlord provided or approved equipment such as microwave ovens and toaster
ovens). Tenant shall not occupy or use the Premises or permit the Premises
to be occupied or used for any purpose or act that is in violation of any
governmental legal requirement or may be dangerous to persons or property.
20. Tenant shall not make or permit any noise, vibration or odor to emanate
from the Premises, or do anything that will create or maintain a nuisance,
or do any act injuring the reputation of the Building.
21. Tenant shall not disturb any other Building occupants.
22. Tenant shall not install or operate any musical or sound producing
instrument or device, radio receiver or transmitter, TV receiver or
transmitter, or similar device in the Premises, nor install or operate any
antenna, aerial, wires or other equipment inside or outside the Premises,
nor operate any electrical device from which may emanate electrical waves
which may interfere with or impair radio or television broadcasting or
reception from or in the Premises or elsewhere, without in each instance,
the prior written approval of Landlord. The use thereof, if permitted,
shall be subject to control by Landlord to the end that others shall not be
disturbed. Ordinary televisions and radios not requiring exterior antennas
are excepted from this prohibition.
23. Tenant shall provide Landlord in writing the names and contact information
of two (2) representatives authorized by the Tenant to request Landlord
services, either billable or non billable and to act as a liaison for
matters related to the Premises.
B. BUILDING ACCESS & SECURITY
1. No additional locks shall be placed upon any doors, windows or transoms in
or to the Premises, nor shall Tenant change existing locks or the mechanism
thereof, without Landlord's permission, which permission shall not be
unreasonably withheld, conditioned or delayed.
2. Tenant shall not use or occupy the Premises in any manner or for any
purpose which would injure the reputation or impair the present or future
value of the Premises or the Building.
3. Bicycles and other vehicles are not permitted inside or on the walkways
outside the Building, except in those areas specifically designated by
Landlord for such purposes.
4. Landlord may from time to time adopt appropriate systems and procedures for
the security or safety of the Building, its occupants, entry and use, or
its contents, and shall provide Tenant with notice thereof. Tenant,
Tenant's agents, employees, contractors, guests and invitees shall comply
with Landlord's reasonable requirements relative thereto.
5. Canvassing, soliciting, and peddling in or about the Building is
prohibited. Tenant, its employees, agents and contractors shall cooperate
with said policy, and Tenant shall use its best efforts to prevent the same
by Tenant's invitees.
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6. Tenant and its employees, agents, contractors, invitees and licensees are
limited to the Premises and the Common Areas. Tenant and its employees,
agents, contractors, invitees and licensees may not enter other areas of
the Building or Project (other than the conference rooms) except when
accompanied by an escort from Landlord and shall sign in/out at building
reception.
7. Tenant acknowledges that Building security problems may occur which may
require the employment of extreme security measures in the day-to-day
operation of the Building. Accordingly, Tenant agrees to cooperate and
cause its employees, contractors and other representatives to cooperate
fully with Landlord in the implementation of any reasonable security
procedures.
8. Tenant shall comply with all federal, state and local, criminal, civil,
safety, health and environmental codes, laws, and ordinances relating to
its use of leased space.
C. MAINTENANCE & CUSTODIAL
1. All contractors, contractor's representatives, and installation technicians
performing work in the Building shall be subject to Landlord's written
prior approval and shall be required to comply with Landlord's standard
rules, regulations, policies, and procedures, as the same may be revised
from time to time. Tenant shall be solely responsible for complying with
all applicable laws, codes and ordinances pursuant to which said work shall
be performed.
2. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, any electrical equipment which does not bear
the U/L (Underwriters Laboratories) seal of approval, or which would
overload the electrical system or any part thereof beyond its capacity for
proper, efficient and safe operation as determined by Landlord, taking into
consideration the overall electrical system and the present and future
requirements therefor in the Building. Tenant shall not operate personal
electronic devices for individual use such as coffeepots, toasters,
refrigerators, space heaters, etc. without Landlord's prior written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed.
D. SHIPPING/RECEIVING
1. Movement in or out of the Building of furniture or office equipment, or
dispatch or receipt by Tenant of any merchandise or materials which require
the use of elevators, stairways, lobby areas, or loading dock areas, shall
be restricted to the hours between 8 a.m. and 5 p.m., Monday through
Friday, excluding Holidays. An oversize delivery such as furniture and or
equipment requires reservations with written advance notification to the
Landlord. Tenant is to assume all risk for damage to articles moved and
injury to any persons resulting from such activity. If any equipment,
property, and/or personnel of Landlord or of any other tenant of the
Building is damaged or injured as a result of or in connection with such
activity, Tenant shall be solely liable for any and all damage or loss to
the extent directly resulting therefrom.
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2. All deliveries to or from the Premises shall be made only at such times, in
the areas and through the entrances and exits designated for such purposes
by Landlord. Tenant shall not permit the process of receiving deliveries to
or from the Premises outside of said areas or in a manner that may
interfere with the use by any other tenant of its premises or of any Common
Areas, any pedestrian use of such area, or any use that is inconsistent
with good business practice.
3. All Tenant mail and small packages will be scheduled for pick-up and
delivery by carrier or supplier to and from the Premises.
4. Deliveries will be delivered un-skidded (i.e., not on pallets) and
arrangements made for inside deliveries to Tenant space. Landlord personnel
will not load/unload cargo deliveries for Tenant from the dock.
5. Tenant arranged shipping/receiving location outside the Premises to be
approved by Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Dock areas shall not be used for storage or staging
by Tenant.
6. The following rules and regulations apply to all loading docks which are
available for the use of more than one tenant (and shall not apply to
loading docks intended for the exclusive use of any tenant): No tenant
shall park or permit any truck or trailer to be parked in any loading dock
area except during the time actually need to load or unload materials. In
no case shall any truck or trailer be permitted to remain in a loading dock
area overnight. If any tenant has been utilizing the loading dock are for a
time period in excess of one hour and another tenant requires access to the
loading dock area, the first tenant shall vacate the loading dock area and
make it available to the second tenant. No tenant may utilize more than one
loading dock at a time if another tenant requires access to the loading
dock and a loading dock is not available for the second tenant's use.
E. FOOD SERVICE
1. No open flame cooking or competing food service or vending machines will be
permitted in the Premises.
2. Tenant shall not remove food service property from the cafe including
trays, dishes, glasses, cups, utensils. Disposal utensils are provided.
F. RULES FOR USE OF ACCESS CARDS
Each of Tenant's employees and on-site contractors shall be issued an access
card. The access card serves as a "key" that allows access to card reader
controlled doors.
The access card will ONLY act as a key on doors leading to the Premises and
Common Areas. Care should be used to prevent excessive bending or abuse that may
cause damage to the card.
1. Do not allow others to use your card.
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2. Report a lost, stolen, or damaged card immediately.
3. If a door is equipped with a card reader - use the reader to access. Do not
"prop" doors open to bypass the system.
4. A "Tailgater" is an individual without an access card who follows an
employee in or out of a door after that employee has used their card to
access a door. Tailgating is not allowed.
5. If Landlord provides Tenant with any access cards or badges, a fee of
$20.00 will be charged for each badge or access card issued.
6. In all cases, Tenant agrees to promptly notify Landlord when access badges
are to be deactivated in cases such as termination, non-use, lost badge,
etc.
73
EXHIBIT E
ESTOPPEL CERTIFICATE
Date [Name and Address of Landlord/Purchaser] and/or
[Name and Address of Mortgagee]
It is our understanding that you are purchasing from ___________________________
("Landlord"), [and/or are providing financing in connection with the acquisition
or refinancing of the] property located at _________________,
____________________________, Massachusetts (the "Property") and in connection
therewith have required this certification by the undersigned.
Reference is made to a Lease dated ________________, between Landlord and the
undersigned as Tenant (the "Lease") for certain premises (the "Premises")
located at the Property. The undersigned, as Tenant, hereby certifies that:
1. The term of the Lease commenced on __________, 20__ and ends on __________,
20__ (the "Expiration Date"). Tenant has no right to renew or extend the
term of the Lease, except as follows: _______
2. The undersigned has accepted and presently occupies the premises described
in the Lease as Tenant.
3. The Base Rent under the Lease is currently $__________________ per month,
and has been paid through __________________, 20__. Tenant currently pays
$______ per month as its estimated Share of Operating Expenses in excess of
Operating Expenses for ____ (which is the Base Year), and $_______ per
month as its estimated Share of Tax Expenses in excess of Tax Expenses for
fiscal year July, 200__ to June, 20__.
4. The Lease is in full force and effect and has not been assigned, modified,
supplemented or amended in any way and, to the knowledge of the
undersigned, neither party is in default thereunder, and no event has
occurred which, with the giving of notice or passage of time, or both,
could result in a default except as follows: _________
5. The Lease represents the entire agreement between Landlord and the
undersigned.
6. On this date, there are no existing defenses or offsets which the
undersigned has against the enforcement of the Lease by Landlord.
7. The undersigned Tenant is in occupancy of the premises described in the
Lease and is actually conducting its business therein, which business is
the use permitted under the Lease. Tenant has not sublet nor assigned its
interest in the Lease except as follows: _______
8. No rent has been paid more than one month in advance of its due date under
the Lease.
74
9. Landlord holds a security deposit of $________. Landlord has no obligation
to segregate the security deposit or to pay interest thereon.
10. Tenant has no option or right of first refusal to purchase all or any
portion of the Property, no option(s) to expand, nor any option to
terminate the Lease prior to the Expiration Date except as follows:
____________
11. All construction, alterations or improvements required to be performed by
Landlord have been completed and any payments, credits or abatements
required to be given by Landlord to Tenant have been given.
12. To Tenant's knowledge, no refunds or other credits are due to Tenant for
Direct Expenses (as defined in the Lease) paid to Landlord as additional
rent for any calendar years ending on or before December 31, 200__.
13. No actions have been filed by or are pending against Tenant under the
bankruptcy laws of the United States or any state thereof.
14. No work has been performed by or at the request of Tenant for which a
mechanic's or materialmen's lien may be filed against the Premises.
15. The signatory below is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Executed as an instrument under seal on __________, 20__.
Very truly yours,
-----------------------------------
Tenant
75
EXHIBIT E-1
LESSEE ESTOPPEL CERTIFICATE
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, ("LENDER")
c/o Real Estate Group
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: Loan Administration Manager
RE: Lease dated __________________, [AND AMENDED ON _______________________]
(the "LEASE") by and between _____________________________________, a _____
limited liability company, as lessor ("LESSOR") and ___________, as lessee
("LESSEE") with respect to certain premises (THE "LEASED PREMISES") located
at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ (the "PROPERTY")
Ladies/Gentlemen:
The undersigned hereby acknowledges that Lessor intends to encumber the Property
with a deed of trust in favor of Lender. The undersigned further acknowledges
the right of Lessor, Lender and any and all of Lessor's present and future
lenders to rely upon the statements and representations of the undersigned
contained in this Certificate and further acknowledges that any loan secured by
any such deed of trust or further deeds of trust will be made and entered into
in material reliance on this Certificate.
Given the foregoing, the undersigned Lessee hereby certifies and represents unto
Lender, its successors and assigns, with respect to the above described Lease, a
true and correct copy of which is attached as EXHIBIT A hereto, as follows:
1. All space and improvements covered by the Lease have been completed
and furnished to the satisfaction of Lessee, all conditions required under
the Lease have been met, and Lessee has accepted and taken possession of
and presently occupies the Leased Premises, consisting of approximately
______________ square feet.
2. The Lease is for a total term of _____________ years, _________ months
commencing ________________, and ending ____________________, and has not
been modified, altered or amended in any respect and contains the entire
agreement between Lessor and Lessee, except as follows:
___________________________________________________ (LIST AMENDMENTS AND
MODIFICATIONS OTHER THAN THOSE, IF ANY, ATTACHED TO AND FORMING A PART OF
THE LEASE AS WELL AS ANY VERBAL AGREEMENTS, OR WRITE "NONE").
3. As of the date hereof, the annual minimum rent under the Lease is
$_______________, subject to any escalation and/or percentage rent and/or
common area maintenance charges, in accordance with the terms and
provisions of the Lease. The "BASE YEAR" for any escalation is
_______________.
4. No rent has been paid by Lessee in advance under the Lease except for
$___________, which amount represents rent for the period beginning
_________________ and ending __________________
76
and Lessee has no charge or claim of offset under said Lease or otherwise,
against rents or other amounts due or to become due thereunder. No
"discounts", "free rent" or "discounted rent" have been agreed to or are in
effect except for_________________________________________________________
__________________________________________.
5. A security deposit of $_____________ has been made and is currently
being held by Lessor. Such security deposit IS/IS NOT in the form of cash
and, if not in the form of cash, a copy thereof is attached hereto as
EXHIBIT B.
6. Lessee has no claim against Lessor for any deposit or prepaid rent
except as provided in PARAGRAPHS 4 AND 5 above.
7. The Lessor has satisfied all commitments, arrangements or
understandings made to induce Lessee to enter into the Lease, and the
Lessor is not in any respect in default in the performance of the terms and
provisions of the Lease, nor is there now any fact or condition which, with
notice or lapse of time or both, would become such a default.
8. Lessee is not in any respect in default under the terms and provisions
of the Lease (nor is there now any fact or condition which, with notice or
lapse of time or both, would become such a default) and has not assigned,
transferred or hypothecated its interest under the Lease, except as
follows: ___________________________________.
9. Except as expressly provided in the Lease or in any amendment or
supplement to the Lease, Lessee: (i) does not have any right to renew or
extend the term of the Lease; (ii) does not have any option or preferential
right to purchase all or any part of the Leased Premises or all or any part
of the building or premises of which the Leased Premises are a part; and
(iii) does not have right, title, or interest with respect to the Leased
Premises other than as lessee under the Lease. There are no understandings,
contracts, agreements, subleases, assignments, or commitments of any kind
whatsoever with respect to the Lease or the Leased Premises except as
expressly provided in the Lease or in any amendment or supplement to the
Lease set forth in PARAGRAPH 2 above, copies of which are attached hereto.
10. The Lease is in full force and effect and Lessee has no defenses,
setoffs, or counterclaims against Lessor arising out of the Lease or in any
way relating thereto or arising out of any other transactions between
Lessee and Lessor.
11. The current address to which all notices to Lessee as required under
the Lease should be sent is:
__________________________________________________________.
Dated: "LESSEE"
-------------
LESSEE SIGNATURE BLOCK HERE
77
EXHIBIT F
ANNUAL REPORTING FORM
MARLBOROUGH CAMPUS
(TENANT:
EXACT Sciences Corporation)
1. CONTACT INFORMATION (please type or print):
Business Name:
EXACT Sciences Corporation
Address:
City/State/Zip:
Contact Person:
Telephone:
Fax:
Date Project was certified by the EACC: January 31, 1997
2. NEW HIRES AT PROJECT LOCATION (ONLY PERMANENT FULL-TIME JOBS):
FY 20___ Hires (7/1/20___ through 6/30/20__): ________
Number of FY 20___ Hires That Reside in the Economic Target Area of
Ashland*Framingham*▇▇▇▇▇▇*Marlborough*Northborough :_______
Total Hires (_____________ through 6/30/20__): _________
Number of Total Hires That Reside in the Economic Target
Area: ______
Average Wage of Employees Hired Since Date of EACC
Certification: _________
3. TOTAL PERMANENT FULL-TIME JOBS LOCATED AT THE PROJECT AS OF JUNE 30,
20____: ________
4. AUTHORIZATION:
I , (print name and title) __________________________________________
hereby certify that the information within this Annual Reporting Form
is true and accurate.
----------------------------------------
(Signature) (Date)
PLEASE RETURN COMPLETED FORM TO LANDLORD BY JULY 10, ANNUALLY
78
EXHIBIT G
LIST OF HAZARDOUS MATERIALS USED BY TENANT IN CONNECTION WITH THE PERMITTED USE
Item Estimated Quantity
-----------------------------------------------------------------------------------------------------------
0.1N HCL 1L
-----------------------------------------------------------------------------------------------------------
0.25M EDTA 500mL
-----------------------------------------------------------------------------------------------------------
1[3-(dimethylamino)propyl]-3-ethylearbodiimidehydrochloride, 98% 20g
-----------------------------------------------------------------------------------------------------------
10x MOPS 250mL
-----------------------------------------------------------------------------------------------------------
11N Hydrochloric Acid 300mL
-----------------------------------------------------------------------------------------------------------
1-Hydroxybenzotriazole 5g
-----------------------------------------------------------------------------------------------------------
1-Methylimidazole, 99% 100ml
-----------------------------------------------------------------------------------------------------------
2-Mercaptoethanol 125mL
-----------------------------------------------------------------------------------------------------------
Acetic Acid, glacial 5L
-----------------------------------------------------------------------------------------------------------
Acetone 2L
-----------------------------------------------------------------------------------------------------------
Acrylamide 1.5kg
-----------------------------------------------------------------------------------------------------------
Acrylamide/Bis-Acrylamide 19:1 Ratio 1.6L
-----------------------------------------------------------------------------------------------------------
Acrylamide/Bis-Acrylamide premix powder 20:1 30g
-----------------------------------------------------------------------------------------------------------
Alconox 1kg
-----------------------------------------------------------------------------------------------------------
Ammonium Acetate 7.5 M solution 250mL
-----------------------------------------------------------------------------------------------------------
Ammonium Acetate, molecular biology reagent 1kg
-----------------------------------------------------------------------------------------------------------
Ammonium Chloride, molecular biology reagent 1kg
-----------------------------------------------------------------------------------------------------------
Ammonium Hydroxide 500mL
-----------------------------------------------------------------------------------------------------------
Ammonium Persulfate 148g
-----------------------------------------------------------------------------------------------------------
Ammonium Sulfate, molecular biology reagent 500g
-----------------------------------------------------------------------------------------------------------
Argon, compressed 4 tanks
-----------------------------------------------------------------------------------------------------------
BICINE 250g
-----------------------------------------------------------------------------------------------------------
Bind Saline 600mL
-----------------------------------------------------------------------------------------------------------
Boric Acid 1kg
-----------------------------------------------------------------------------------------------------------
Bromphenol Blue Sodium, molecular biology reagent 12.5g
-----------------------------------------------------------------------------------------------------------
Calcium Chloride Dihydrate, molecular biology reagent 550g
-----------------------------------------------------------------------------------------------------------
Chelex Resin 100g
-----------------------------------------------------------------------------------------------------------
Ches, Sigmaultra 100g
-----------------------------------------------------------------------------------------------------------
Chloroform, ACS grade 500ml
-----------------------------------------------------------------------------------------------------------
Chloroform, molecular biology reagent 76L
-----------------------------------------------------------------------------------------------------------
Citric Acid Free Acid Anhydrous Crystalline 500g
-----------------------------------------------------------------------------------------------------------
Citric Acid, monohydrate 500g
-----------------------------------------------------------------------------------------------------------
Citric Acid, trisodium salt dihydrate 500g
-----------------------------------------------------------------------------------------------------------
Clorox Germicidal Bleach 20gal
-----------------------------------------------------------------------------------------------------------
Coomasie Blue 10g
-----------------------------------------------------------------------------------------------------------
D-(+)- glucose 250g
-----------------------------------------------------------------------------------------------------------
Desiccant 1kg
-----------------------------------------------------------------------------------------------------------
Diatomaceous Earth 500g
-----------------------------------------------------------------------------------------------------------
79
-----------------------------------------------------------------------------------------------------------
Dimethyl Sulfoxide, molecular biology reagent 150ml
-----------------------------------------------------------------------------------------------------------
Diphenyliodonium Chloride, 97% 2g
-----------------------------------------------------------------------------------------------------------
EDTA disodium dihydrate salt 500g
-----------------------------------------------------------------------------------------------------------
EDTA disodium salt 500g
-----------------------------------------------------------------------------------------------------------
EDTA, 0.5 M pH 8.0 1.5L
-----------------------------------------------------------------------------------------------------------
EGDA 50g
-----------------------------------------------------------------------------------------------------------
EGTA 100g
-----------------------------------------------------------------------------------------------------------
Ethanolamine free base 450ml
-----------------------------------------------------------------------------------------------------------
Ethidium Bromide, 95% 200ml/5g
-----------------------------------------------------------------------------------------------------------
Ethyl Alcohol USP, 200 proof 18 gal
-----------------------------------------------------------------------------------------------------------
Ficoll, molecular biology reagent 75g
-----------------------------------------------------------------------------------------------------------
Formamide, HD 300ml +/- 200ml
-----------------------------------------------------------------------------------------------------------
Formamide, P.A. 1.3L +/- 1L
-----------------------------------------------------------------------------------------------------------
Gamma-Methacryloxypropyl Trimethoxysilane 3ml
-----------------------------------------------------------------------------------------------------------
Gelatin 100g
-----------------------------------------------------------------------------------------------------------
Glycerol 3L
-----------------------------------------------------------------------------------------------------------
Glycine free base, molecular biology reagent 1.2kg
-----------------------------------------------------------------------------------------------------------
Guanidine 100g
-----------------------------------------------------------------------------------------------------------
Guanidine Isothiocyanate 6kg +/- 2kg
-----------------------------------------------------------------------------------------------------------
HEPES 100g
-----------------------------------------------------------------------------------------------------------
Hexadecyltrimethylammonium bromide, for molecular biology 250g
-----------------------------------------------------------------------------------------------------------
Hexamine Cobalt (III) Chloride 5g
-----------------------------------------------------------------------------------------------------------
Hydrochloric Acid solution 1.0 N 11L
-----------------------------------------------------------------------------------------------------------
Hydrochloric Acid, ACS reagent 400ml
-----------------------------------------------------------------------------------------------------------
Hydrochloric Acid, Volumetric Standard 0.2N Solution in water 1.5L
-----------------------------------------------------------------------------------------------------------
Hydroquinone 500g
-----------------------------------------------------------------------------------------------------------
Isoamyl alcohol, ACS reagent 10L
-----------------------------------------------------------------------------------------------------------
Isopropanol, 99% 32gal +/- 25gal
-----------------------------------------------------------------------------------------------------------
Isopropanol, molecular biology reagent 1L
-----------------------------------------------------------------------------------------------------------
Kanamyacin 1g
-----------------------------------------------------------------------------------------------------------
LICOR MSDS's
-----------------------------------------------------------------------------------------------------------
Lipids 1g
-----------------------------------------------------------------------------------------------------------
Manganese Chloride Hexahydrate 325g
-----------------------------------------------------------------------------------------------------------
Mangnesium Sulfate 10mL
-----------------------------------------------------------------------------------------------------------
Meatphor Agarose 25g
-----------------------------------------------------------------------------------------------------------
MES free acid, molecular biology reagent 100g
-----------------------------------------------------------------------------------------------------------
Methanol, spectrophotometric grade 9L
-----------------------------------------------------------------------------------------------------------
Methylene Blue 25g
-----------------------------------------------------------------------------------------------------------
Methylene Chloride 500mL
-----------------------------------------------------------------------------------------------------------
MICRO BCA Protein Assay Reagent Kit 1 kit
-----------------------------------------------------------------------------------------------------------
Mineral Oil, white, light 1.7L
-----------------------------------------------------------------------------------------------------------
Mixed Bed Resin 100g
-----------------------------------------------------------------------------------------------------------
MOPS 100g
-----------------------------------------------------------------------------------------------------------
N, N- Dimethyl Formamide 500mL
-----------------------------------------------------------------------------------------------------------
N,N'-Methylene-Bis-Acrylamide 25g
-----------------------------------------------------------------------------------------------------------
Nickel Chloride Hexahydrate 100g
-----------------------------------------------------------------------------------------------------------
80
-----------------------------------------------------------------------------------------------------------
Nusieve 3:1 Agarose 2.2kg +/- 2kg
-----------------------------------------------------------------------------------------------------------
Orange G Sodium, molecular biology grade 500mL
-----------------------------------------------------------------------------------------------------------
PEG 10000 500g
-----------------------------------------------------------------------------------------------------------
PEG 8000 5kg
-----------------------------------------------------------------------------------------------------------
Phenol, buffer saturated 20L +/- 10L
-----------------------------------------------------------------------------------------------------------
Phosphate Buffered Saline, pH 7.4 2.2L
-----------------------------------------------------------------------------------------------------------
Phosphoric Acid, 99.999% 500ml
-----------------------------------------------------------------------------------------------------------
PicoGreen dsDNA Quantitation Kit 2
-----------------------------------------------------------------------------------------------------------
Pipes Free Acid GenAR 100g
-----------------------------------------------------------------------------------------------------------
Polyvinylpyrrolidone, molecular biology reagent 350g
-----------------------------------------------------------------------------------------------------------
POP-6 1L +/- 500mL
-----------------------------------------------------------------------------------------------------------
Potassium Acetate 250g
-----------------------------------------------------------------------------------------------------------
Potassium Acetate 500g
-----------------------------------------------------------------------------------------------------------
Potassium Chloride, molecular biology reagent 2kg
-----------------------------------------------------------------------------------------------------------
Potassium Ferrocyanide 100g
-----------------------------------------------------------------------------------------------------------
Potassium Hydroxide (0.1N) 1L
-----------------------------------------------------------------------------------------------------------
Potassium Phosphate Dibasic: Trihydrate, molecular biology reagent 750g
-----------------------------------------------------------------------------------------------------------
Potassium Phosphate, monobasic 750g
-----------------------------------------------------------------------------------------------------------
Prosieve 50X gel Solution 125mL
-----------------------------------------------------------------------------------------------------------
Protease(Quiagen) 30AU
-----------------------------------------------------------------------------------------------------------
Qigagen Midi Prep Kits 20 tests
-----------------------------------------------------------------------------------------------------------
Quiagen Mini Preps 750 tests
-----------------------------------------------------------------------------------------------------------
Saline Sodium Citrate 20X Solution (SSC) 8L
-----------------------------------------------------------------------------------------------------------
Sand, white quartz 1kg
-----------------------------------------------------------------------------------------------------------
SDS Solution, 10% 15L
-----------------------------------------------------------------------------------------------------------
Seakem Agarose 1.2kg +/- 500g
-----------------------------------------------------------------------------------------------------------
Seaplaque Agarose GTG 25g
-----------------------------------------------------------------------------------------------------------
Sec-Butanol 250mL
-----------------------------------------------------------------------------------------------------------
Sephadex 50g
-----------------------------------------------------------------------------------------------------------
Sodium Acetate Anhydrous 2.5kg
-----------------------------------------------------------------------------------------------------------
Sodium Acetate Buffer Solution 13L
-----------------------------------------------------------------------------------------------------------
Sodium Azide 50g
-----------------------------------------------------------------------------------------------------------
Sodium Azide, Sigmaultra 25g
-----------------------------------------------------------------------------------------------------------
Sodium Bicarbonate, ACS Reagent 1.5kg
-----------------------------------------------------------------------------------------------------------
Sodium Bisulfite 100g
-----------------------------------------------------------------------------------------------------------
Sodium Borate 500g
-----------------------------------------------------------------------------------------------------------
Sodium Carbonate Anhydrous, Sigmaultra 500g
-----------------------------------------------------------------------------------------------------------
Sodium Chloride Anhydrous Sigmaultra 1.5kg
-----------------------------------------------------------------------------------------------------------
Sodium Chloride, molecular biology reagent 17.5L
-----------------------------------------------------------------------------------------------------------
Sodium Citrate Dihydrate, ACS Reagent 1kg
-----------------------------------------------------------------------------------------------------------
Sodium Cyanoborohydride 75g
-----------------------------------------------------------------------------------------------------------
Sodium Dodecyl Sulfate 600g
-----------------------------------------------------------------------------------------------------------
Sodium Hydroxide 10M 100mL
-----------------------------------------------------------------------------------------------------------
Sodium Hydroxide Anhydrous Pellets 1150g
-----------------------------------------------------------------------------------------------------------
Sodium Hydroxide, 50% solution in water 500mL
-----------------------------------------------------------------------------------------------------------
Sodium Hydroxide, standard solution, 1 M (1 N) 6L
-----------------------------------------------------------------------------------------------------------
81
-----------------------------------------------------------------------------------------------------------
Sodium Hydroxide, volumetric standard, 0.1 N 5.5L
-----------------------------------------------------------------------------------------------------------
Sodium Iodide, ACS Reagent 100g
-----------------------------------------------------------------------------------------------------------
Sodium Phosphate Dibasic Anhydrous, Sigmaultra 5kg
-----------------------------------------------------------------------------------------------------------
Sodium Phosphate Monobasic, Monohydrate, ACS Reagent 1150g
-----------------------------------------------------------------------------------------------------------
Sodium Phosphate Monobasic, Sodium Phosphate Monobasic 750g
-----------------------------------------------------------------------------------------------------------
Sodium Pyrophosphate Decahydrate, Sigmaultra 100g
-----------------------------------------------------------------------------------------------------------
Sodium Sulfate 1kg
-----------------------------------------------------------------------------------------------------------
Sodium Thiocynate 250g
-----------------------------------------------------------------------------------------------------------
Succinic Anhydride 500g
-----------------------------------------------------------------------------------------------------------
TAE 50X 2L
-----------------------------------------------------------------------------------------------------------
TAE 50X Solution 101L
-----------------------------------------------------------------------------------------------------------
TEMED 225ml
-----------------------------------------------------------------------------------------------------------
TEN Buffer 150gal
-----------------------------------------------------------------------------------------------------------
Tetramethylammonium Chloride Solution, molecular biology reagent 25g
-----------------------------------------------------------------------------------------------------------
Triethylene Glycol Diacrylate 250g
-----------------------------------------------------------------------------------------------------------
Trifluoroacetic Acid 25mL
-----------------------------------------------------------------------------------------------------------
Tris 7kg
-----------------------------------------------------------------------------------------------------------
Tris 1.0M Sterile Solution pH 7.2 4L
-----------------------------------------------------------------------------------------------------------
Tris 1.0M Sterile Solution pH 7.4 9L
-----------------------------------------------------------------------------------------------------------
Tris 1.0M Sterile Solution pH 9.0 1.750L
-----------------------------------------------------------------------------------------------------------
Tris-Acetate-EDTA Buffer, 10x concentrate, molecular biology reagent 7L
-----------------------------------------------------------------------------------------------------------
Tris-Borate EDTA, 10X (TBE) 50L
-----------------------------------------------------------------------------------------------------------
Tris-EDTA Buffer, 100X concentrate, molecular biology reagent 300mL
-----------------------------------------------------------------------------------------------------------
Tris-EDTA Buffer, 1X solution, molecular biology reagent 34L +/- 20L
-----------------------------------------------------------------------------------------------------------
Triton X-100, molecular biology reagent 250ml
-----------------------------------------------------------------------------------------------------------
TRIZMA Sulfate 100g
-----------------------------------------------------------------------------------------------------------
Tween 1.5L
-----------------------------------------------------------------------------------------------------------
Urea 1kg
-----------------------------------------------------------------------------------------------------------
Water, Molecular Biology Reagent 235L
-----------------------------------------------------------------------------------------------------------
Wizard(R)PCR Preps DNA Purification System 2 kits
-----------------------------------------------------------------------------------------------------------
Xylene Cyanole FF 10.5g
-----------------------------------------------------------------------------------------------------------
Xylenes, Mixed ACS Reagent 1.5L
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------
82
------------------------------------------------------------------------------------------------------
Item Estimated Estimated
Quantity in House Quantity in House
R and D Clinical
------------------------------------------------------------------------------------------------------
Stool samples 1,000 5,000
------------------------------------------------------------------------------------------------------
Stool homogenates 125,000 X 32 mL 125,000 X 32 mL
------------------------------------------------------------------------------------------------------
Blood samples 50,000 X 5 mL N/A
Plus an additional
200/wk
------------------------------------------------------------------------------------------------------
Biohazard Trash 20 Boxes 20 Boxes
------------------------------------------------------------------------------------------------------
Contaminated Hoods (Filters) (Low Grade Risk) 10 10
------------------------------------------------------------------------------------------------------
83
EXHIBIT H
FORM OF LETTER OF CREDIT
84
EXHIBIT I
NON-DISTURBANCE, ATTORNMENT
AND SUBORDINATION AGREEMENT
THIS NON-DISTURBANCE, ATTORNMENT AND SUBORDINATION AGREEMENT (this
"AGREEMENT") is made and entered into as of ___________, 2003, by, between and
among ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as lead arranger and
administrative agent for itself and other banks (hereinafter referred to as
"BENEFICIARY" or "▇▇▇▇▇ FARGO"), ________________________________ ("LESSEE"),
and ________________________________________________________, a _____________
limited liability company ("LESSOR").
RECITALS
A. Lessor has requested that Beneficiary make a loan to be evidenced by a
Promissory Note (the "NOTE"), and secured, INTER ALIA, by a Mortgage, Security
Agreement, and Assignment of Leases and Rents (the "MORTGAGE "), which Mortgage
shall constitute a lien or encumbrance on that certain real property more
particularly described in the attached EXHIBIT A (the "PROPERTY").
B. Lessee is the holder of a leasehold estate covering a portion of the
Property (the "DEMISED PREMISES") pursuant to the terms of that certain lease
dated ___________________, ____ as amended pursuant to ______________
(collectively, the "LEASE"). A true and correct copy of the Lease has previously
been delivered to Beneficiary.
C. Lessee, Lessor and Beneficiary desire to confirm their understanding
with respect to the Lease and the Mortgage.
AGREEMENT
1. So long as Lessee is not in default (beyond any period given Lessee to
cure such default) in the payment of rent or in the performance of any of the
terms, covenants or conditions of the Lease on Lessee's part to be performed,
Lessee's possession and occupancy of the Demised Premises shall not be
interfered with or disturbed by Beneficiary during the term of the Lease or any
extension thereof duly exercised by Lessee.
2. Lessee hereby consents to the assignment by Lessor to Beneficiary of
the Lease, as set forth in the Mortgage. If the interests of Lessor shall be
transferred to and/or owned by Beneficiary by reason of judicial foreclosure,
power-of-sale foreclosure or other proceedings brought by it, or by any other
manner, including, but not limited to Beneficiary's exercise of its rights under
the Mortgage, and Beneficiary succeeds to the interest of the Lessor under the
Lease, Lessee shall be bound to Beneficiary under all of the terms, covenants
and conditions of the Lease for the balance of the remaining term thereof and
any extension thereof duly exercised by Lessee, with the same force and effect
as if Beneficiary were the Lessor under the Lease, and Lessee does hereby attorn
to Beneficiary as its lessor, said attornment to be effective and self-operative
without the execution of any further instruments on the part of any of the
parties hereto immediately upon Beneficiary's succeeding to the interest of the
lessor under the Lease; provided, however, that Lessee shall be under no
obligation to direct its payment of rent to Beneficiary until Lessee receives
written notice from Beneficiary that it has succeeded to the interest of Lessor
under the Lease or that it has terminated the Lessor's right to collect rents as
provided in the Mortgage. The respective rights and obligations of Lessee and
Beneficiary upon such attornment, to the extent of the then remaining balance of
the term of the Lease and any such extension, shall be and are the same as now
set
85
forth therein, it being the intention of the parties hereto for this purpose to
incorporate the Lease in this Agreement by reference with the same force and
effect as if set forth in full herein.
3. If Beneficiary shall succeed to the interest of Lessor under the
Lease, Beneficiary shall, subject to the last sentence of this SECTION 3, be
bound to Lessee under all of the terms, covenants and conditions of the Lease;
provided, however, that Beneficiary shall not be:
(a) Liable for any act or omission of any prior lessor (including
Lessor); or
(b) Subject to any offsets, defenses or counterclaims which Lessee
might have against any prior lessor (including Lessor); or
(c) Bound by any rent, additional rent or advance rent which
Lessee might have paid for more than the current month to any prior lessor
(including Lessor) and all such rent shall remain due and owing notwithstanding
such advance payment; or
(d) Bound by any amendment or modification of the Lease made
without its consent and written approval; or
(e) Required to restore the building, complete any
improvements or otherwise perform the obligations of Lessor under the Lease
in the event of a foreclosure of the Mortgage or acceptance by Beneficiary
of a deed in lieu of foreclosure, in either instance prior to full
restoration of the building or completion of any improvements.
Neither ▇▇▇▇▇ Fargo nor any other party who, from time to time, shall be
included in the definition of the term "Beneficiary" hereunder shall have any
liability or responsibility under or pursuant to the terms of this Agreement or
the Lease after it ceases to own a fee interest in or to the property described
on EXHIBIT A.
4. Subject to the terms of this Agreement (including, but not limited to,
those in SECTION 2 hereof), the Lease and the terms thereof are, and shall at
all times continue to be, subject and subordinate in each and every respect, to
the Mortgage and their respective terms, to any and all renewals, modifications,
extensions, substitutions, replacements and/or consolidations of the Mortgage,
and to all other liens now or hereafter serving as security for the Note.
Nothing herein contained shall be deemed or construed as limiting or restricting
the enforcement by Beneficiary of any of the terms, covenants, provisions or
remedies of the Mortgage, whether or not consistent with the Lease.
5. The term "Beneficiary" shall be deemed to include ▇▇▇▇▇ Fargo and all
of its successors and assigns, including anyone who shall have succeeded to
Lessor's interest by, through or under judicial or power-of-sale foreclosure or
other proceedings brought pursuant to the Mortgage, or deed in lieu of such
foreclosure or proceedings, or otherwise.
6. In the absence of the prior written consent of Beneficiary, Lessee
agrees not to do any of the following: (a) prepay the rent under the Lease for
more than one (1) month in advance, (b) enter into any agreement with the Lessor
to amend or modify the Lease, (c) voluntarily surrender the Demised Premises or,
except as expressly permitted under the Lease, terminate the Lease prior to the
expiration date thereof set forth in the Lease, and (d) sublease or assign the
Demised Premises.
7. In the event Lessor shall fail to perform or observe any of the
terms, conditions or agreements in the Lease, Lessee shall give written notice
thereof to Beneficiary and Beneficiary shall
86
have the right (but not the obligation) to cure such failure. Lessee shall not
take any action with respect to such failure under the Lease, including, without
limitation, any action in order to terminate, rescind or avoid the Lease or to
withhold any rent thereunder, for a period of thirty (30) days after receipt of
such written notice by Beneficiary; provided, however, that in the case of any
default which cannot with diligence be cured within said 30-day period, if
Beneficiary shall proceed promptly to cure such failure and thereafter prosecute
the curing of such failure with diligence and continuity, the time within which
such failure may be cured shall be extended for such period as may be necessary
to complete the curing of such failure with diligence and continuity.
8. So long as the loan evidenced by the Note (the "LOAN") is outstanding,
Lessee covenants to provide Beneficiary with all information, including, but not
limited to evidence of payment of taxes and insurance (if Lessee is obligated
for such payments under the Lease) to which the Lessor may be entitled under the
Lease.
9. So long as the Loan is outstanding, Beneficiary or its designee may
enter upon the Property at all reasonable times, upon twenty-four (24) hours
notice during normal working hours, to visit or inspect the Property and discuss
the affairs, finances and accounts of Lessee applicable to the Property or the
Lease at such reasonable times as Beneficiary or its designee may request.
10. Lessee hereby represents and warrants that the Lease and this
Agreement have been duly authorized, executed and delivered by Lessee and
constitute legal, valid and binding instruments, enforceable against Lessee in
accordance with their respective terms, except as such terms may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally.
11. This Agreement may not be modified orally or in any other manner
than by an agreement in writing signed by the parties hereto and their
respective successors in interest. This Agreement shall inure to the benefit of
and be binding upon the parties hereto, their successors and assigns.
12. This Agreement may be executed in several counterparts, and all so
executed shall constitute one agreement, binding on all parties hereto,
notwithstanding that all parties are not signatories to the original or the same
counterpart.
13. All notices or other communications required or permitted to be
given pursuant to the provisions hereof shall be in writing and shall be
considered as properly given if mailed by first class United States mail,
postage prepaid, registered or certified with return receipt requested, or by
delivering same in person to the intended addressee, or by prepaid telegram.
Notice so given in person or by telegram shall be effective upon its deposit.
Notice so given by mail shall be effective two (2) days after deposit in the
United States mail. Notice given in any other manner shall be effective only if
and when received by the addressee. For purposes of notice, the addresses of the
parties shall be:
Lessor: Marlborough Campus Limited Partnership
c/o Berwind Property Group, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Senior Vice President
Lessee:
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
----------------------------------------------------
87
Beneficiary: ▇▇▇▇▇ Fargo Bank, National Association
c/o Real Estate Merchant Banking
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Manager - Loan Administration Department
provided, however, that any party shall have the right to change its address for
notice hereunder to any other location within the continental United States by
the giving of thirty (30) days' notice to the other parties in the manner set
forth hereinabove.
88
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
---------------------------------------
By:
-----------------------------------
By:
-----------------------------------
"Lessee"
STATE OF ______________________ )
) ss:
COUNTY OF ____________________ )
I, a Notary Public in and for the aforesaid jurisdiction, do hereby certify
that _______________________, who is personally well known to me as, or
satisfactorily proven to be, the person named as _____________ of in the
foregoing Non-Disturbance, Attornment, Estoppel and Subordination Agreement
bearing date as of the ____ day of ________, 2003, personally appeared before me
in the said jurisdiction, and by virtue of the authority vested in him or her by
said Agreement, acknowledged the same to be the act and deed of said
organization, and delivered the same as such.
GIVEN under my hand and official seal this ____ day of _________, 2003.
---------------------------------------
Notary Public
My Commission Expires:
-----------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
89
LESSOR:
By:
------------------------------------
Name:
Title:
STATE OF ______________________ )
) ss:
COUNTY OF ____________________ )
I, a Notary Public in and for the aforesaid jurisdiction, do hereby certify
that __________________________, who is personally well known to me as, or
satisfactorily proven to be, the person named as the _______________________ of
____________________________, Lessor in the foregoing Non-Disturbance,
Attornment, Estoppel and Subordination Agreement bearing date as of the ____ day
of _________, 2003, personally appeared before me in the said jurisdiction, and
by virtue of the authority vested in him or her by said Agreement, acknowledged
the same to be the act and deed of said organization, and delivered the same as
such.
GIVEN under my hand and official seal this ____ day of _________, 2003.
---------------------------------------
Notary Public
My Commission Expires:
-----------------------------------
[SIGNATURES CONTINUED ON NEXT PAGE]
90
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION
By:
------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
DISTRICT OF COLUMBIA ) ss:
I, a Notary Public in and for the aforesaid jurisdiction, do hereby
certify that ▇▇▇▇ ▇. ▇▇▇▇▇, who is personally well known to me as, or
satisfactorily proven to be, the person named as Vice President of ▇▇▇▇▇ Fargo
Bank, National Association in the foregoing Non-Disturbance, Attornment,
Estoppel and Subordination Agreement bearing date as of the ____ day of
_________, 2003, personally appeared before me in the said jurisdiction, and by
virtue of the authority vested in him/her by said Agreement, acknowledged the
same to be the act and deed of ▇▇▇▇▇ Fargo Bank, National Association, and
delivered the same as such.
GIVEN under my hand and official seal this ____ day of _________, 2003.
---------------------------------------
Notary Public
My Commission Expires:
-----------------------------------
91
EXHIBIT A
LEGAL DESCRIPTION OF THE PROPERTY
92
TABLE OF CONTENTS
PAGE
MARLBOROUGH OFFICE LEASE..........................................................................................1
ARTICLE 1 PREMISES, BUILDING, PROJECT, AND COMMON AREAS...................................................3
1.1 The Premises....................................................................................3
1.2 The Building and The Project....................................................................3
1.3 Common Areas....................................................................................3
1.4 Furniture.......................................................................................5
1.5 Card Key Access.................................................................................5
ARTICLE 2 LEASE TERM......................................................................................5
2.1 Lease Term......................................................................................5
2.2 Option to Extend................................................................................6
ARTICLE 3 BASE RENT AND INTERIM RENT......................................................................6
3.1 Base Rent.......................................................................................6
32 Interim Rent
ARTICLE 4 ADDITIONAL RENT.................................................................................7
4.1 General Terms...................................................................................7
4.2 Definitions of Key Terms Relating to Additional Rent............................................7
4.3 Allocation of Direct Expenses..................................................................10
4.4 Calculation and Payment of Additional Rent.....................................................11
4.5 Taxes and Other Charges for Which Tenant Is Directly Responsible...............................12
4.6 Landlord's Books and Records...................................................................12
4.7 Tenant's Electricity Cost......................................................................12
ARTICLE 5 USE OF PREMISES................................................................................13
5.1 Permitted Use..................................................................................13
5.2 Prohibited Uses................................................................................13
5.3 CC&Rs..........................................................................................13
5.4 Condition of Premises..........................................................................14
5.5 Demising Plan..................................................................................14
5.5 Rules and Regulations..........................................................................14
ARTICLE 6 SERVICES AND UTILITIES.........................................................................14
6.1 Standard Tenant Services.......................................................................14
6.2 Special Tenant Services........................................................................14
6.3 Requirements of Tenant.........................................................................15
6.4 Interruption of Use............................................................................15
ARTICLE 7 REPAIRS........................................................................................16
7.1 Landlord's Obligations.........................................................................16
7.2 Tenant's Obligations...........................................................................16
i
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 8 ADDITIONS AND ALTERATIONS......................................................................17
8.1 Landlord's Consent to Alterations..............................................................17
8.2 Manner of Construction.........................................................................17
8.3 Payment for Improvements.......................................................................18
8.4 Construction Insurance.........................................................................18
8.5 Landlord's Property............................................................................18
ARTICLE 9 COVENANT AGAINST LIENS.........................................................................19
ARTICLE 10 INSURANCE......................................................................................19
10.1 Indemnification and Waiver.....................................................................19
10.2 Tenant's Compliance With Landlord's Fire and Casualty Insurance................................20
10.3 Tenant's Insurance.............................................................................20
10.4 Form of Policies...............................................................................21
10.5 Subrogation....................................................................................21
10.6 Landlord's Insurance...........................................................................22
ARTICLE 11 DAMAGE AND DESTRUCTION.........................................................................22
11.1 Repair of Damage by Landlord...................................................................22
11.2 Landlord's Option to Repair....................................................................23
11.3 Waiver of Statutory Provisions.................................................................23
ARTICLE 12 NON-WAIVER.....................................................................................24
ARTICLE 13 CONDEMNATION...................................................................................24
13.1 Condemnation...................................................................................24
13.2 Tenant's Right to Award........................................................................25
ARTICLE 14 ASSIGNMENT AND SUBLETTING......................................................................25
14.1 Transfers......................................................................................25
14.2 Landlord's Consent.............................................................................26
14.3 Transfer Premium...............................................................................27
14.4 Landlord's Option as to Subject Space..........................................................27
14.5 Effect of Transfer.............................................................................28
14.6 Occurrence of Default..........................................................................28
14.7 Non-Transfers..................................................................................28
ARTICLE 15 SURRENDER OF PREMISES; OWNERSHIP AND REMOVAL OF TRADE FIXTURES.................................29
15.1 Surrender of Premises..........................................................................29
15.2 Removal of Tenant Property by Tenant...........................................................29
ARTICLE 16 HOLDING OVER...................................................................................30
ARTICLE 17 ESTOPPEL CERTIFICATES..........................................................................30
ii
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 18 SUBORDINATION..................................................................................30
ARTICLE 19 DEFAULTS: REMEDIES.............................................................................31
19.1 Events of Default..............................................................................31
19.2 Remedies Upon Default..........................................................................32
19.3 Subleases of Tenant............................................................................33
19.4 No Relief From Forfeiture After Default........................................................33
19.5 Efforts to Relet...............................................................................34
19.6 Landlord Default...............................................................................34
ARTICLE 20 COVENANT OF QUIET ENJOYMENT....................................................................34
ARTICLE 21 SECURITY DEPOSIT...............................................................................34
ARTICLE 22 BACK-UP GENERATOR..............................................................................36
ARTICLE 23 SIGNS..........................................................................................36
ARTICLE 24 COMPLIANCE WITH LAW............................................................................36
ARTICLE 25 LATE CHARGES...................................................................................37
ARTICLE 26 LANDLORD'S RIGHT TO CURE DEFAULT: PAYMENTS BY TENANT...........................................38
26.1 Landlord's Cure................................................................................38
26.2 Tenant's Reimbursement.........................................................................38
ARTICLE 27 ENTRY BY LANDLORD..............................................................................38
ARTICLE 28 TENANT PARKING.................................................................................39
ARTICLE 29 MISCELLANEOUS PROVISIONS.......................................................................40
29.1 Terms; Captions................................................................................40
29.2 Binding Effect.................................................................................40
29.3 No Air Rights..................................................................................40
29.4 Transfer of Landlord's Interest................................................................40
29.5 Prohibition Against Recording..................................................................40
29.6 Landlord's Title...............................................................................41
29.7 Relationship of Parties........................................................................41
29.8 Application of Payments........................................................................41
29.9 Time of Essence................................................................................41
29.10 Partial Invalidity.............................................................................41
29.11 No Warranty....................................................................................41
29.12 Landlord Exculpation...........................................................................41
29.13 Entire Agreement...............................................................................42
29.14 Right to Lease.................................................................................42
29.15 Force Majeure..................................................................................42
iii
TABLE OF CONTENTS
(continued)
PAGE
29.16 Notices........................................................................................42
29.17 Joint and Several..............................................................................43
29.18 Authority......................................................................................43
29.19 Attorneys' Fees................................................................................43
29.20 Governing Law..................................................................................44
29.21 Submission of Lease............................................................................44
29.22 Brokers........................................................................................44
29.23 Independent Covenants..........................................................................44
29.24 Project or Building Name and Signage...........................................................44
29.25 Counterparts...................................................................................45
29.26 Confidentiality................................................................................45
29.27 Transportation Management......................................................................45
29.28 Building Renovations...........................................................................45
29.29 No Violation...................................................................................45
29.30 Communications and Computer Lines..............................................................46
29.31 Hazardous Materials............................................................................46
29.32 Development of the Project.....................................................................46
29.33 No Consequential Damages.......................................................................47
29.34 Compliance with TIF Agreement..................................................................48
29.35 Tenant's Financial Condition...................................................................48
ARTICLE 30 RIGHT OF FIRST OFFER...........................................................................50
ARTICLE 31 SATELLITE DISH.................................................................................50
List of Exhibits
Exhibit A Plan of the Premises
Exhibit B Plan of the Project identifying ▇▇▇▇▇▇▇▇▇ ▇, ▇, ▇, ▇▇▇ ▇
▇▇▇▇▇▇▇ ▇ Furniture Inventory List
Exhibit D Rules and Regulations
Exhibit E Form of Estoppel Certificate
Exhibit F Annual Reporting Form
Exhibit G List of Hazardous Materials
Exhibit H Form of Letter of Credit
Exhibit I Form of SNDA
iv